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Wichita police promote officer who killed unarmed man in fatal 'swatting' incident

Wichita Eagle logo Wichita Eagle 7/3/2022 Chance Swaim, The Wichita Eagle

Jul. 3—The Wichita Police Department has promoted the officer who pulled the trigger in the nation's first deadly "swatting" call, a move the mayor and two city council members said could undermine efforts to rebuild trust in the largest police department in Kansas.

The June 25 promotion of Justin Rapp to detective comes amid pending lawsuits and a Netflix docuseries that focused an episode on the shooting.

Rapp shot and killed Andrew Finch, an unarmed 28-year-old father, in December 2017 after a California serial hoaxer reported a bogus murder-hostage situation at Finch's address.

Interim Chief Lem Moore, who promoted Rapp, said the killing doesn't disqualify Rapp from promotion. Moore noted Sedgwick County District Attorney Marc Bennett decided not to file criminal charges, and former Chief Gordon Ramsay did not initiate a disciplinary investigation after a Professional Standards Bureau review of the shooting, meaning Rapp has no disciplinary record from the shooting.

"To utilize the involvement of an officer in an officer involved shooting as a disqualifier for future advance(ment) would not only be contrary to existing policy, but would also not allow otherwise qualified individuals to advance within the department," Moore said in a statement.

City policy allows Moore to skip over candidates for promotion. That decision would require the chief to inform the employee in writing of the specific reason and give suggestions to help the candidate improve their chances of promotion in the future.

On the night of his death, Finch opened his front door, stepped out on his porch and within 10 seconds had been shot in the chest by Rapp, who was positioned 40 yards away with a rifle. Law enforcement had surrounded the Finch residence and shouted conflicting commands when he stepped outside. There was no verbal warning before the shot.

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.

Lisa Finch, Andrew Finch's mother, said the Wichita Police Department should not have promoted Rapp before her civil lawsuit is resolved. It claims Rapp used excessive force and violated Finch's Fourth Amendment rights.

"It's atrocious," she said of Rapp's promotion. "It pierces my heart."

She said it appears that the city is rewarding Rapp for shooting her son instead of holding him accountable.

"They didn't follow procedure, policy, protocol, regulations, rules or anything the night my son was shot," Finch said. "I don't know how this man got promoted. It sends a message that civilians don't matter — because that could have happened to anybody."

The city has said the department followed policy and procedure that night and that Rapp was forced to make a split-second decision based on the hoax call, which led him to believe Finch was a hostage taker who had killed at least one person inside the home.

Finch's address had been targeted for a "swatting" attack by online gamers who were complete strangers to him. Tyler Barriss, Casey Viner and Shane Gaskill have all been convicted of crimes for their actions on that night.

Rapp's promotion comes two weeks after the release of a Netflix docuseries — "Web of Make Believe: Death, Lies and the Internet" — placed the Finch killing back in the national spotlight.

The police department is also under heightened scrutiny after a text-messaging scandal that included SWAT team members joking about beating and shooting civilians. The council has ordered an independent assessment of the department's operations and culture, including how it investigates and disciplines its officers.

"Frankly, we're trying to rebuild trust in the community, and I worry about moving forward with controversial decisions with an interim police chief," Wichita Mayor Brandon Whipple said. "I worry about how that looks to folks who would agree that we should wait until we get our study back or wait until we have better direction on what the community wants to see out of the next police chief and what direction they want to see our police force head."

Council members Maggie Ballard and Mike Hoheisel said they don't like the optics or timing of Rapp's promotion either.

"It's just terrible timing because we're trying to work on rebuilding this public trust, and it's just not a good look," Ballard said.

Moore said he promoted Rapp because he qualified under the city's promotion policy — including written and oral examinations — and the department needs to fill detective positions to continue receiving federal grant money. The promotion policy is also included in the Fraternal Order of Police contract, which was approved unanimously by the mayor and City Council in December despite concerns that it continued to keep police disciplinary records closed.

"I appreciate the public interest given the officer's involvement in this truly tragic event and the timing of Officer Rapp's promotion," Moore said in a written statement. "As interim chief, I must make timely decisions to move the department forward based on existing policy, protocol and for what's best for the City, the department and its officers."

Rapp did not want to be interviewed for this story.

'This isn't our call'

The Rapp promotion is the latest disagreement between the City Council, city manager and police department leaders.

The City Council ordered an independent assessment of the Wichita Police Department, and how it investigates its own officers, after a city manager's committee found that police leadership failed to address racist, sexist, anti-government, anti-Muslim, homophobic and other troubling attitudes among SWAT team members in text messages first reported by The Eagle.

Ramsay, who resigned in March to run for sheriff in Minnesota, and deputy chiefs Jose Salcido and Chet Pinkston, who were named in the committee report, have publicly contested the committee's findings and pointed instead to actions by City Manager Robert Layton and the city's human resources director.

The outside assessment follows a push by the council to strengthen oversight and transparency by the Citizens Review Board, which reviews certain Wichita Police Department internal and external complaints.

That board relies on the police department for information about cases and officer discipline, has no investigative authority and doesn't get to review cases until they are closed. The officers remain anonymous. Most of the board's work is done behind closed doors in executive session.

The City Council gave the board a boost in April, requiring the police department to provide summaries of the anonymous officers' disciplinary histories and allow the board to issue a public written report on any case it reviews. The board immediately issued a scathing report on the text messages.

Whipple, Ballard and Hoheisel said they're growing increasingly frustrated that the city's elected officials have very little control over the police department, especially personnel decisions. Layton, the city manager, is in charge of personnel decisions. He said he defers to the chief of police on officer promotions.

The three officials met with Moore and Layton in mid-June to hear Moore's reasoning.

All three left the meeting disappointed.

"This isn't our call," Whipple said. "We didn't make this call. (Moore) told us pretty forwardly that he feels he has the support in the community for these decisions and that he would answer for them."

"The issue I have is I don't think this is good timing for promotions in general," Ballard said. "I mean, I don't want to just single out Rapp. Really, for everybody, you know, while we're getting ready to start this investigation basically to tell the culture of WPD, and I think it couldn't be worse timing in general, not just specifically for Rapp."

Hoheisel said one of the things the council can do is call for changes to the police union contract, which was passed just before he and Ballard took office and isn't set to expire until 2024.

"There's really nothing we as a city council can do," Hoheisel said. "So whatever my personal feelings about it are, I do think we need to look at a way to have more accountability for the elected officials because that's frankly where the buck should stop because we should be accountable for these things, but in our current system, we're not."

Ballard said council members are within their rights to seek answers about Wichita police decisions, even if they're not involved in making them, and hold the city manager accountable.

"The public has made very clear to us that they're concerned and we're not really doing our job if we're not at least asking the questions that everybody wants to know the answers to," Ballard said. "I don't want to overstep as council, but I certainly think it is our job to ask some of those questions and be able to relay the answers."

Beyond the image of the department, defending officers in police killings lawsuits can have financial consequences for the city. In the past year, the city has paid out more than $1 million to settle lawsuits filed in the police killings of Marquez Smart and Troy Lanning. The Finch family is suing for $25 million.

Layton said he was not involved in the decision to promote Rapp but that it's his understanding that Rapp's name was near the top of the list for promotions based on test scores and seniority.

"I'm not going to second-guess the chief and his decision making in this regard," Layton said. "I don't want to ever call into question people getting their positions based on merit."

Layton said the meeting with Moore, the mayor and city council members was informational.

"At no time during that meeting was the chief asked or was I asked to consider reversing that decision," Layton said.

It's unclear whether Whipple, Ballard and Hoheisel are in the minority. Council member Brandon Johnson did not respond to questions. Council member Jeff Blubaugh said he wasn't aware of the promotion until an Eagle reporter told him about it. "I hate to even speak about it without knowing anything about it," he said. Vice Mayor Becky Tuttle was dealing with a death in the family and was not immediately available to answer questions.

Council member Bryan Frye said he trusts that Moore made the right decision in promoting Rapp.

"I understand the timing is unfortunate, and I get all that, but it is Chief Moore's call," Frye said. "I just have to put my faith in Chief Moore that he knows what he's doing. I get that it's going to be an unpopular choice, due to the timing, but that's why he's got to make that decision."

No qualified immunity

Andrew M. Stroth, a civil rights attorney representing the Finch family in a federal lawsuit against Rapp, said the promotion is not surprising.

He has argued in court filings that the Wichita Police Department fails to meaningfully investigate or discipline its officers after they shoot people, a claim the city disputes.

"Andy Finch's two children don't have a father anymore, and Officer Rapp is getting promoted. How is that fair? How is that equitable? Andy Finch opened up the door to his home and — without cause or provocation — Justin Rapp killed him."

Rapp testified during a deposition that he thought he saw a gun in Finch's hand and that he shot him without warning to protect other officers who were closer to Finch to the east of the house.

U.S. District Judge John W. Broomes denied Rapp qualified immunity in the federal lawsuit, writing 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."

The Finch lawsuit is awaiting a decision by the 10th U.S. Circuit Court of Appeals about whether it should go to trial.

In a separate lawsuit, Rapp is suing the city in state court for tens of thousands of dollars in back-pay he says he is owed for an outside security job he claims the city prevented him from working as punishment for the Finch killing.

(c)2022 The Wichita Eagle (Wichita, Kan.) Distributed by Tribune Content Agency, LLC.

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