Jaylene Capps, the mother of Christopher Capps, mourns as she buries her son who died in a hail of bullets from a sheriff’s deputy’s handgun on May 2, 2010. Photo by Randall Howell
Excessive force used in death of Native American
Court ruling opens door for lawsuit
By Ernestine Chasing Hawk
Native Sun News Editor RAPID CITY –– “The cop murdered my son,” Jerry Capps told Native Sun News in May of 2010 shortly after his son Christopher Capps died from five gunshot wounds fired by Pennington County Deputy David Olson. The Eighth Circuit Court of Appeals has just confirmed the distraught father’s suspicions, that Olson used excessive force in the death of his son and violated his constitutional rights. “I told the cop ‘you shot my son because he was brown,’” the father had said in 2010. “There was no reason for this ... no reason at all.” Now the appeals court decision opens the way for the parents of Christopher Capps, Jerry and Jaylene Capps to file a wrongful death lawsuit against the officer. The Appellate Court judges ruled that the first shot fired against Capps hit him in the back, supporting evidence he was running away from the officer. “We agree with the district court that whether Capps was moving towards Deputy Olson when Deputy Olson fired the first shot is a disputed material fact that bears on the reasonableness of the use of force. Because we must construe the facts in the light most favorable to Capps at this stage, we accept Stephenson's conclusion that Capps was not facing Deputy Olson when Deputy Olson fired his first round. The use of deadly force against a fleeing suspect who does not pose a significant and immediate threat of serious injury or death to an officer or others is not permitted,” the Eighth Circuit Court of Appeals decision states. “Based on the facts we are required to assume, Capps did not pose a threat of significant bodily injury or death to Deputy Olson or Scribner. And Deputy Olson had fair and clear warning at the time of the shooting that the use of deadly force against a suspect who did not pose a threat of serious bodily injury or death was unconstitutional. Therefore, the contours of the right were sufficiently clear—a reasonable officer would have understood that use of deadly force against a fleeing suspect who does not pose a significant and immediate threat of serious injury or death to an officer or others is not permitted,” the appellate court judges continued.
Jerry Capps, Rapid City, comforts his wife, Jaylene, as she grieves, touching the star quilt on the casket of her son, Christopher J. Capps, 22, during burial ceremonies on May 7, 2010. at Mountain View Cemetery, Rapid City. Photo by Randall Howell
The case was originally filed in 2012 in Rapid City and heard before District Court Judge Jeffrey Viken who denied Olson's motion for summary judgment based on qualified immunity. Capps, who was 22 when he was gunned down by Olson, was planning to attend college at the University of South Dakota in Vermillion in the fall. From the court's decision:
“On May 2, 2010, Deputy Olson received a report from dispatch regarding a belated assault—one that is not in progress and occurred before dispatch received the report. Deputy Olson was in the area, so he responded to the call. Dispatch reported that a Native American male pushed a juvenile off of his bike and assaulted him." “Dispatch also reported that the victim was having trouble breathing. When Deputy Olson arrived at the scene, he came upon Tammy Scribner. Tammy Scribner informed Deputy Olson that her husband, David Scribner (Scribner), was in pursuit of the suspect, Capps. Deputy Olson chased Scribner and Capps over a barbed-wire fence and through a wooded area. Deputy Olson was not able to see Scribner and Capps until after he exited the wooded area and came to the top of a rise in the ground. From this location, Deputy Olson saw Scribner and Capps approximately 200 to 300 yards away. Capps was running away from Scribner and was about 60 to 70 feet ahead of Scribner. Deputy Olson heard Scribner yelling at Capps but could not understand what Scribner was saying." "The parties dispute what happened next. Deputy Olson claims that he observed Capps turn around and take three steps or so toward Scribner. As Capps was moving towards Scribner, Deputy Olson saw Capps's hand go to the ground 'for an instant' but he did not see Capps pick up anything. Capps then began running toward Scribner. Deputy Olson shouted, 'Sheriff's Office.' Capps then turned toward Deputy Olson and started to run in Deputy Olson's direction. Capps was about 60 feet away from Deputy Olson when Capps turned. When Capps was about 30 feet away, Deputy Olson saw what he thought was a silver or gray knife with a three to four inch blade in Capps's right hand. Deputy Olson commanded Capps to 'go to the ground,' 'show me your hands,' 'stop where you are,' and 'drop the weapon.' Capps did not follow the commands, and Deputy Olson fired his gun at Capps five times. Deputy Olson estimated he fired his first shot when Capps was about 20 to 25 feet away and the other four shots when Capps was approximately 15 to 18 feet away." "After Capps fell to the ground, Deputy Olson placed Capps in handcuffs. Deputy Olson radioed dispatch and stated shots fired, one subject down, and weapons unknown. Deputy Olson did not search the area for a weapon after he placed Capps in handcuffs nor did Deputy Olson say anything about a weapon to the first two officers who arrived on the scene after the shooting." "While Capps was still in handcuffs and on the ground, another officer on the scene, Soucy, noticed a piece of driftwood approximately six to eight inches long to the right of Capps's head. Soucy did not see anyone move or touch the driftwood." "Photographs taken of the driftwood show that it may have been overgrown by blades of grass. Deputy Olson did not see the driftwood on the ground. An inventory log noted one piece of driftwood was recovered at the scene." "Capps was pronounced dead later that night. Dr. Donald Habbe completed the autopsy report, which noted five gunshot wounds. One of the bullets entered Capps's body through his back.”Olson was cleared of wrongdoing in the shooting by the state Division of Criminal Investigation and Attorney General Marty Jackley.
Tribal activists led a protest against the police shooting of Christopher Capps in Rapid City, South Dakota, in June 2010. Photo by Estella Claymore / Native Sun News
Community members were outraged as they viewed the decision as another example of police brutality against Native Americans in the city. Shortly after the decision to clear Olson, a protest march was organized by James Swan and the Urban Warrior Society. Swan called Capps' death an overreaction to a “young man carrying a stick.” “Is RCPD Protecting Us or Are They Killing Us?” and “Wildlife and Native American males: Open Season,” were some of the signs protesters carried through the streets of Rapid City. Jerry Capps promised at that time that the incident will “be addressed, and it will be fought at every level. I will push this and push this and push this until we win.” The Eighth Circuit Court of Appeals just helped the distraught family find a measure of justice in a town dubbed Racist City. “Therefore, the contours of the right were sufficiently clear—a reasonable officer would have understood that use of deadly force against a fleeing suspect who does not pose a significant and immediate threat of serious injury or death to an officer or others is not permitted," the court stated 8th Circuit Decision:
Capps v. Olson (March 16, 2015) (Contact Ernestine Chasing Hawk at staffwriter2@nsweekly.com) Copyright permission Native Sun News
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