Finch v. City of Wichita
| Decision Date | 19 June 2020 |
| Docket Number | Case No. 18-1018-JWB |
| Parties | LISA G. FINCH and DOMINICA C. FINCH, as co-Administrators of the Estate of Andrew Thomas Finch, Deceased, Plaintiffs, v. CITY OF WICHITA, KANSAS; JUSTIN RAPP; and BENJAMIN JONKER, Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiffs are the co-administrators of the estate of Andrew Thomas Finch. Plaintiffs filed this action under 42 U.S.C. 1983 after Finch was shot and killed by a Wichita police officer. The matter is now before the court on the following: Defendants' motion for summary judgment (Doc. 165); Plaintiffs' motions to exclude expert testimony (Docs. 160, 162); and Defendants' motion to exclude expert testimony (Doc. 164). The motions have been fully briefed and are ripe for decision. (Docs. 166, 190, 187; 161, 173, 184; 163, 172, 182; and 164, 177, 183.) For the reasons stated herein, Defendants' motion for summary judgment (Doc. 165) is GRANTED as to Defendants City of Wichita and Benjamin Jonker, and DENIED as to Defendant Rapp. The parties' motions to exclude expert testimony (Docs. 160, 162, 164) are GRANTED or GRANTED IN PART as stated in this order.
In keeping with the standards governing summary judgment, the following statement of facts views the evidence, and all reasonable inferences therefrom, in the light most favorable to Plaintiffs as the non-moving parties. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ().
At 6:10 p.m. on December 28, 2017, a City of Wichita security screener received a phone call and referred it to 911 emergency dispatchers. The caller hung up and called back multiple times. At 6:18 p.m., Sedgwick County 911 dispatchers made contact with the caller, who told them he was located at 1033 W. McCormick in Wichita ("the residence"); 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. At approximately 6:19 p.m., 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. (Doc. 166 at 2.)
Officers normally respond to calls based on the information they receive from dispatch, even if the information is not correct. Their response is also based on information they learn from on-scene investigation. (Doc. 190 at 2.)
As a result of the dispatch, Wichita Police Department ("WPD") officers and Sedgwick County Sheriff's deputies responded to the scene believing they were responding to a barricaded shooter scenario with hostages where a male had reported shooting his father and holding additional family members at gunpoint. (Doc. 166 at 2.)
Sedgwick County deputies David Headings and Noah Stephens-Clark, who were part of a high-risk warrant entry team, responded within a minute or two of the call and were the first officers on scene. Headings grabbed a ballistic shield and Stephens-Clark was armed with a rifle. The deputies parked and approached the east side of the residence on foot, walking through the yards between the houses as additional officers began arriving on the west side. WPD officers Kyle Perry and Chris Ronen also responded and joined Headings and Stephens-Clark to the east of the residence. Stephens-Clark was closest to the residence, Deputy Headings was to his right, and the WPD officers fell in behind the deputies. (Id. at 3.) The officers gathered at the first house to the east of the residence. Although it was dark, the officers on the east side could discern that there were officers to the west of the house, patrol vehicles with lights flashing blocking traffic on McCormick, and officers to the north of the house.
WPD Sgt. Benjamin Jonker had been driving when dispatch first broadcast the shooting call. Jonker asked dispatch about other calls from that address and was informed that the only prior call was a report of a person having a stroke. Jonker was the only supervisor in sight when he arrived at the scene, so he assumed that he was in command. He parked to the southwest of the residence and began to assess how many officers he had. (Id.at 3.)
WPD officers Justin Rapp and Powell, both "SCAT" officers [Special Community Action Team], responded and parked on the southwest side of the residence. Rapp retrieved his rifle, on which he had been trained and was certified for use up to 50 yards. Rapp was told by WPD Officer Gumm that he could see movement in the upstairs window of the residence and that it looked like someone was doing CPR. (Id. at 3-4.)
Jonker and Rapp regularly responded to "high risk" incidents reported to 911. It would not be unusual for the subject of such a call to have mental health problems.
Jonker quickly realized there were no exits on the west side of the house. He knew Gumm had indicated there was movement coming from the windows. Jonker wanted officers on the front (north) side of the residence, so he directed Rapp and Powell to follow him to the front of the house. Gumm stayed as cover on the back of the residence. (Id. at 4.)
Jonker was checking over the radio to determine whether there were sufficient officers on the perimeter and giving instructions on where to block traffic. Jonker did not hear any screaming, gunshots or cries of distress from the house. (Doc. 190 at 8.) Jonker asked the next incoming units to block off McCormick Street. WPD Officer Dustin Fussell responded to the scene and pulled his patrol car onto McCormick to block the eastbound lanes as requested by Jonker. Jonker, Rapp, and Powell were running by Fussell at that point, and Fussell heard Jonker asking dispatch for more information on where the call came from. (Doc. 166 at 4.)
Jonker told Rapp to be "long cover" because Rapp had a rifle. Jonker did not tell Rapp how to perform this duty and gave him no additional commands. Based on his years of law enforcement experience, Rapp understood his duties as cover officer were to look out for the safety of everyone in the general vicinity, including perimeter officers, to keep watch of the residence, to identify any movement, to alert other officers of movement, and to assist in identifying any potential threats. (Id. at 4-5.)
Rapp positioned himself behind a parked car just to the north of McCormick street. The residence was located just south of McCormick street, about 40 yards (120 feet) away. Rapp had an unobstructed view of the front porch, most of the front yard, and the entire sidewalk. Although there were lights in the area, including streetlights from the Seneca/McCormick intersection northwest of the residence, it was evening and the sun had gone down, which made it more difficult to see things clearly. Rapp raised his rifle and pointed it south as he scanned the entire front of thehouse looking for movement. Officer Matthew Powell was within arm's distance to Rapp's right, and Jonker was a little further to Rapp's right. (Id. at 5.) Rapp understood from Jonker and radio traffic that officers were present to the east and west of the residence. Rapp could not see the officers on the east side of the residence. Although the parties have not cited evidence establishing how far away from the residence the officers on the east side were at the time of the incident, there is some evidence they were about 45 feet away from the residence's front door. (Doc. 180-3 at 19.)
Because there were four officers on the east side, including one with a shield, one of those officers, Deputy Perry, communicated to Jonker that he and the other three would form a contact team if necessary. As soon as Perry said this, Andrew Thomas Finch ("Finch") opened the front door of the house. The front door was on a porch on the north side of the house. The door was located toward the west end of the porch. (Id.) Jonker thought the officers had a "decent" perimeter in place at that time, but everything happened so fast that he was still confirming that a perimeter was in place when Finch appeared. Jonker was still formulating a plan on how to respond to the incident. He intended to designate the officers east of the residence as a "takedown" team but had not yet done so. (Id. at 5-6.)
Rapp had only been in his position for about 40 seconds when Finch opened the front door, pushed the screen door open with his left hand, and took a step or two out onto the porch. He remained within the arc of the screen door and was holding it open with his shoulder or foot. The only information from dispatch that Rapp could use to compare Finch to the suspect caller was that the caller was male. Jonker heard someone say, "the door's opening," and he looked up and saw Finch standing just outside the front door threshold. Stephens-Clark turned on the light on his rifle when Finch came onto the porch. (Id. at 6.)
Jonker yelled "show your hands." He heard officers to the east or elsewhere also yelling commands. (Doc. 174-4 at Depo. p. 219.) Jonker yelled "walk this way." At that point there were multiple people yelling multiple commands from different directions. (Doc. 190 at 2.) Jonker wanted to be the primary contact with Finch; he had not assigned anyone else that task. Stephens-Clark, on the east side, started giving Finch verbal commands to put his hands up or show his hands and "step off the porch." Stephens-Clark could not understand the commands being given by officers on the north side. Headings also initially began hollering commands but stopped because he had been trained that one person needs to issue commands to eliminate confusion. (Id.)
Rapp could see that the front door to the house remained open as...
To continue reading
Request your trial