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In January of 2018, I posted Wichita: A Deadly Non-SWAT Swatting and Wichita: A Deadly Non-SWAT Swatting 2.  “Swatting” occurs when someone makes a false call of a hostage or similar situation in the hope the police will respond and kill an innocent. Unfortunately, all too often, mindless police responses do just that, which was the case in Wichita.

At about 1815 on December 28, 2017, Wichita Police went to Andrew Finch’s home.  They got a false call about a murder and hostage taker.  Seeing many police lights outside, Finch opened his front door. Officers to his left, right and in front of him, some 40 yards away, all began to yell a stream of conflicting commands, and an officer with an AR-15 across the street killed him with a single shot.

Police claimed Finch made some kind of movement toward his waist, which caused the officer to shoot him, however, as I noted in previous articles, it was unlikely indeed that officer, due to the distance involved, could have clearly seen what Finch was doing or if he had a weapon.  In effect, he shot based on seeing—or not—movement.  He could not have had any idea if Finch actually presented a threat, and there were multiple officers to the right and left of Finch, much closer, who were in a much better position to issue commands, and to see what, if anything, Finch was doing.

The shooter is in the left side of the frame

The body camera of an officer standing to the right of the officer that shot Finch reveals someone there yelling “Show your hands…walk this way…walk th…” which was interrupted by the shot.  The brief video posted by Kansas.com shows shows that officer taking the shot, and then returning his trigger finger to register (extended and in contact with the rifle’s receiver).  The rifle is pointed toward Finch the entire time.  He apparently says nothing throughout the video.

The Wichita police officer who fired the shot that killed Andrew Finch after a swatting call will not face charges, District Attorney Marc Bennett said Thursday.

Bennett said he had to make a determination based on Kansas law and law handed down by the Supreme Court, which says that when determining if an officer acted reasonably, evidence has to be reviewed based on what the officer knew at the time of the shooting, not 20/20 hindsight, he said.

The officer, whom the reports refers to as ‘Officer #1,’ will not be named since he’s not being charged, Bennett said.

Bennett reviewed more than 80 pieces of video evidence and interviewed every officer who was at Finch’s house, including ones from the Sedgwick County Sheriff’s Office. He said officers who were closer to Finch thought he reached down to pull up his pants. At one point, Finch’s right arm was not visible to other officers.

The officer who fired the shot, along with some others, thought Finch was reaching for a gun, Bennett said.

‘This shooting should not have happened,’ he said. ‘But this officer’s decision was made in the context of the false call.

This entire situation is horrific, and Wichita will almost certainly be paying a massive settlement to the family.  The Kansas.com story has the most complete information thus far available:

Records provided by Sedgwick County Emergency services reflect that the first 911 happened just after 6:15 p.m. A male caller told dispatch that he shot his dad and was inside 1033 W. McCormick.

At 6:19 p.m., officers were notified that a shooting had occurred. Forty-two seconds after the initial dispatch was made, dispatch told officers that the caller ‘did shoot his dad in the head, he is not breathing. He’s also indicating that his mom and brother are in the house and he has them at gunpoint.’

The caller told 911 that he was holding the gun and wouldn’t drop it.

Bennett said that when officers swarmed Finch’s house, they had reason to believe there was an armed man inside.

Wichita police released a portion of that call the day after the shooting. In the recording, the caller says he’s in a one-story house. Finch’s house was two stories.

Bennett confirmed during a news conference Thursday that that conversation happened during a second call with 911, 10 minutes after Finch was shot.

When officers “swarmed Finch’s house” they had reason to believe only that something might be going on.  They obviously did not exercise reasonable care to determine what was happening, and based on the discrepancy in the description of the house, should have been much more skeptical.

The first officer to Finch’s house was a 17-year veteran and sergeant of the Wichita Police Department. He directed officers to cover the north side of Finch’s house and to block the street, Bennett’s report says.

He directed the officer who fired the shot — only referred to in the report as ‘officer #1’ — to move to the front of the house because he wanted ‘a rifle for long cover.’

Finch’s mother, Lisa, told reporters the day after her son was shot that he opened the door after noticing police lights outside.

At 6:28 p.m., an officer states over the radio, ‘we got the front door open.’

When Finch opened the door, multiple officers began yelling, ‘let me see your hands’ and ‘come out here,’ the report says.

Note that gentle readers:the officers ordered Finch to come outside.  “Multiple officers began yelling.”  This is a fundamental mistake.  In any such situation, only a single officer, with a clear view of the suspect, should be giving commands.  Multiple conflicting commands is a sure way to make deadly mistakes.

Thinking it would be better for the male to focus away from the officers staged to the east, Sgt. #1 began ‘Screaming louder for this guy to, to walk towards me,’ the report says.

The sergeant pulled out his handgun as soon as Finch stepped into the doorway, then “recognized that he was too far to, ‘be taking a shot from that distance,’ with a handgun.’

The sergeant said Finch’s hands appeared to be in front of him until ‘his right hand came down a little bit to his side and that’s when everyone screamed louder.’

He glanced away to where other officers were standing and heard the crack of the rifle.

Finch was shot 10 seconds after he opened the door.

‘Shots fired. One Down. Confirming. It’s the suspect?’ dispatch asks.

‘Don’t know,’ a WPD sergeant responds, according to a report released by Bennett.

Bennett said Thursday that some officers thought Finch was reaching for a gun. Others said he wasn’t in their view because he positioned his body back inside the house. His hand was on his storm door when the shot was fired, and the bullet ricocheted into him, Bennett said.

The officers had no idea who they shot or why.  They had not bothered to so much as make a phone call to speak to anyone inside the house. Someone came out and didn’t respond properly to multiple, confusing, contradictory commands from multiple directions properly, so they shot him.

The officer who fired the shot told investigators that he thought Finch was the man who told dispatchers he had killed his father, and was holding his mother and a sibling hostage, Bennett said.

Oh?  Why exactly? The report says the office was “looking through his scope,” but doesn’t identify its type.  If a red dot type, his view was unmagnified and partially restricted by the dot.  If a magnifying scope, his overall field of view would be smaller, but he would theoretically have been able to see what Finch was doing with relative clarity.  We just don’t know.  What we do know is the officer said he saw Finch’s hand moving and thought he had a gun, so he shot him.  It does not say he saw a gun, just that he “thought” he had a gun.

Bennett said, ‘In isolation, the mere movement of a subject’s hands may not be reasonably interpreted as a threat.

No kidding.

However, the context of this case is wholly unique. Officer #1 was there, positioned with a rifle to offer cover for the officers to the east, because he and other law enforcement officers had been dispatched to the scene to confront a man who claimed to have shot his father in the head and who was actively holding his mother and sibling hostage,’ Bennett said. ‘What is now clear, was not in that moment. The call was a hoax, ostensibly intended to draw a law enforcement presence to the residence. None of the officers on the scene in that moment knew this.

Prosecutor Bennett is clearly a master of the obvious.  The article says an internal investigation will be done, and a civil review board will also look into the shooting.  A civil case has been filed:

Attorney Andrew M. Stroth said he informed Finch’s mother, Lisa, shortly after he got word that Bennett wouldn’t be filing charges against the officer.

‘When we received the information from the district attorney, I called Lisa and told her the decision,’ said Stroth, who is representing the family in a federal civil-rights lawsuit against the city of Wichita and the Police Department.

‘The family’s devastated and the family is disappointed by the decision of the district attorney today,’ he said.

He said Bennett’s decision won’t affect the civil case.

‘The criminal standard (in court) is very different from the civil standard,’ he said. ‘The lack of indictment today, from our perspective . . . has zero impact on the civil case.’

He said police body camera video shows the shooting wasn’t justified. ‘It is our perspective that the video (shows) that there is no threat to the officers or anyone else,’ he said. ‘Andrew Finch had nothing to do with the swatting call or the prank call and he was an innocent victim of a completely unreasonable and unjustified use of force.

I’ll deal with this shortly, but that’s my perspective as well.  And what of the swatter?

The person charged with making the false call – Tyler Barriss, 25, of Los Angeles – has been charged with involuntary manslaughter. He is scheduled for a preliminary hearing on May 22.

Reports say Barriss was called by someone after a feud between two Call of Duty players broke out over a virtual ‘friendly kill’ during a game earlier that day. There was a $1.50 wager over the game.

One of the players allegedly called Barriss and requested he ‘swat’ another player.’

While speaking with reporters after the shooting, Finch’s mother, Lisa, said her son doesn’t play video games and wasn’t involved in the feud. Her family has since filed a federal lawsuit against Wichita and the Police Department.

The two other gamers allegedly involved in the initial game have not been charged with a crime.

Analysis:

The officer should have been charged.  None of the police did due diligence in handling this call.  Rather than taking simple, basic steps to determine the validity of the call, they all rushed to the scene expecting a shoot out, and finding a two story home when they were told it was a single story home, no one was apparently bothered by the discrepancy.  No one bothered to ask “do we have the wrong house?”

After putting a large number of officers in place, the smart, professional thing to do was call someone in the house.  That would have quickly allowed the officers to discover they were acting out a swatting. Had they done this, Finch would be alive today.  I would not want to be Wichita officers on the witness stand in the civil case, trying to explain why no one thought to do this.

In concert with making a phone call, officers should have stealthily approached the house, keeping their police vehicles out of sight, and obviously, no flashing reds and blues. Competent officers carry binoculars. They should have gotten eyes on the house from every direction of the compass, and simply watched for awhile.

The Sgt. apparently in command at the scene did not actually take command.  His ordering the shooter across the street for “long cover” all but ensured that officer would take a shot when he was the least capable of determining whether a shot should be taken.  The Sgt. apparently did not designate a single officer to issue commands or handle what should have been an unremarkable take down.

Thinking this a murder/hostage situation, the officers automatically assumed Finch was the killer/hostage taker, despite having no visible weapon.  They were told by the swatter the killer would not put down his weapon, yet there was Finch, no weapon visible.  He could easily have been a hostage escaping the house, and if so, officers should have understood he could be terrified and irrational, unable to respond quickly and appropriately to their commands.  Finch was shot only ten seconds after coming out; in such a case, they should have been much slower to shoot.

The article, quoting the report, suggests the officer/shooter never saw a weapon.  He just thought he saw a gun.  There were many officers much closer, in much better position to see and communicate with Finch.  The shooter could not clearly see Finch, could not hear him, could not communicate with him, yet he saw Finch’s hand moving and shot him.

Bennett again:

In isolation, the mere movement of a subject’s hands may not be reasonably interpreted as a threat.’

“However, the context of this case is wholly unique. Officer #1 was there, positioned with a rifle to offer cover for the officers to the east, because he and other law enforcement officers had been dispatched to the scene to confront a man who claimed to have shot his father in the head and who was actively holding his mother and sibling hostage,’ Bennett said. ‘What is now clear, was not in that moment. The call was a hoax, ostensibly intended to draw a law enforcement presence to the residence. None of the officers on the scene in that moment knew this.

The mere movement of Finch’s hands still must not be interpreted as a threat,unless Bennett wants to face situations where all officers need to say to avoid murder charges is “his hand moved and I thought he had a gun, so I shot him.”  The officers had that false impression because none of them, including supervisors, were sufficiently well-trained or smart enough to question what they had been told.

Contemporary police officers know about swatting, yet these officers did not exercise even the most basic tactics necessary to know what was happening.  It doesn’t matter what dispatchers say.  All competent officers know they often get it wrong, or at the very least, omit or confuse vital details, yet these officers didn’t use Basic Police Procedure 101 tactics.

Final Thoughts:

Swatting works, and false reports continue, because far too many police agencies are all too ready to fall for it.  They don’t take the most basic steps to ensure such calls are legitimate.  Swatters can, for the most part, count on the police of overreact.

The larger numbers of body camera videos released indicate clearly that there was no officer exposed to potentially hostile fire. No officer was in danger, therefore, there should have been no police gunfire.  From his position, the shooter could not possibly have been able to tell if any officer was exposed to danger. No certainty about danger, no shooting.  That none of the many other, much closer officers, officers in a much better position to know what was happening, fired should have been a deciding factor for Bennett.

As I’ve noted, this civil case will be an easy win for the family’s lawyers.  The failings of the police that directly caused Finch’s death will be telling, if the case ever gets to court.  There will most likely be a generous—and fast–settlement.

If the Wichita Police Department is at all professional and has any sense of ethics, the shooter will be fired, and the Sgt., and perhaps others involved, will be disciplined.  I’m tempted to say there should be significant changes in the WPD procedure manual, but if they have to add “be really sure you’re shooting the right person,” they have far greater problems than updating a manual can solve.

There is one potentially good thing to come out of this case: it will serve, in future police academy basic classes, as an example of how not to handle this kind of call.  Unfortunately, people often have to die to provide those lessons.