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

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.

Pigg and Green argued that the circuit court should have considered another 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.

“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.”