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Finch v. Rapp.

No. 20-3132. 7/5/2022. D.Kan. Judge Tymkovich. 42 USC § 1983—Excessive Force Claim—Summary Judgment—Qualified Immunity—Monell Claim.

July 5, 2022

A 911 dispatcher alerted Wichita law enforcement officers that a caller had shot his father and was holding his mother and brother at gunpoint. The dispatcher also reported that the caller threatened to light the house on fire and commit suicide. Officers responded and surrounded the residence.

Unbeknownst to the officers and dispatchers, this was a case of “swatting.” The caller was a Los Angeles resident, with no connection to the Wichita address or its residents. This serial “swatter” made the call on behalf of a Call of Duty player who wanted to retaliate against another player after a virtual altercation in the videogame. However, none of the players actually lived in Wichita, and the caller was given a false address. Andrew Finch, one of the residents, had no connection to the caller or online altercation. He was at home with a few family members and friends.

It was dark outside when officers arrived. Officer Rapp was told to be “long cover” because he had a rifle. When Finch pushed the front door open and stepped onto the porch, an officer on the east side of the residence instructed him to put his hands up and step off the porch. Officer Rapp’s supervisor, on the north side of the residence, shouted commands that were not heard by other officers. None of the officers identified themselves as police. Although Finch initially appeared to comply with commands to put his arms up, he then began to lower his hands. There was conflicting evidence as to what occurred next, with some officers believing that Finch was reaching for a weapon and others perceiving no threat. Officer Rapp believed Finch was drawing a firearm, and fired a single shot, hitting Finch in the chest. Finch died within minutes. Afterward, officers confirmed that Finch was unarmed and realized there had been no hostage situation or murder.

Through his next of kin, Finch filed a 42 USC § 1983 suit against Officer Rapp, his supervisor, and the City of Wichita. Defendants moved for summary judgment. The district court granted summary judgment on the claims against the supervisor and the City, but denied summary judgment and the qualified immunity defense as to Officer Rapp. Officer Rapp filed an interlocutory appeal of the denial of qualified immunity, and plaintiff appealed the final summary judgment entered in favor of the City.

The Tenth Circuit first evaluated the denial of summary judgment as to Officer Rapp. Excessive force claims are analyzed under the Fourth Amendment and its reasonableness standard. That standard asks whether police employed objectively reasonable force given the totality of the circumstances. The district court concluded that a reasonable jury could find that (1) Officer Rapp fired a shot when he could see Finch’s hands were empty, (2) Officer Rapp’s assertion that Finch made a threatening motion was false, and (3) Officer Rapp could not see Finch’s movements clearly due to darkness and distance.

These findings were binding on the Tenth Circuit in its review of the qualified immunity denial. The Tenth Circuit rejected Officer Rapp’s contention that the video evidence contradicted the district court’s findings. Whether Officer Rapp reasonably believed Finch presented a threat is ultimately a genuine issue of fact for the jury to determine.

The Tenth Circuit next concluded that having found a constitutional violation, the district court correctly denied qualified immunity because Officer Rapp’s actions violated clearly established law. In particular, the district court correctly relied on four Tenth Circuit opinions to determine that the right not to be subjected to deadly force was clearly established. While there was no case with identical facts, taken together, the cases established that an officer, even when responding to a dangerous reported situation, may not shoot an unarmed and unthreatening suspect.

Last, the Tenth Circuit determined that the district court properly granted summary judgment on plaintiff’s municipal liability claims against the City. Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a city may be liable if it executes an unconstitutional policy or custom, or a facially constitutional policy that causes a constitutional violation. The Tenth Circuit concluded that plaintiff failed to show genuine issues of material fact regarding a city policy or custom of inadequate investigation and discipline, as alleged. Further, even if he could have, he was unable to prove causation. Plaintiff’s arguments therefore did not meet the demanding standard of causation required in Monell cases, namely, a “direct causal link between the municipal action and the deprivation of federal rights.”

The Tenth Circuit therefore affirmed the district court’s denial of summary judgment as to the claims against Officer Rapp and affirmed the grant of summary judgment as to the claims against the City.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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