By Tim Potter, Wichita Ealge (Nov. 21, 2017)
When the Barber County undersheriff fired a beanbag that killed an unarmed man, he went against national recommendations for use of the “less lethal” weapon.
According to an attorney’s preliminary investigation on how the shooting unfolded and based on the guidelines, the undersheriff fired the beanbag round too close to the man and hit him in the chest – a part of the body he was supposed to avoid if he meant to avoid a fatal wound.
In interviews, The Eagle has gathered a detailed account of the shooting by the attorney for Kristina Myers, the wife of the man killed, 42-year-old Steven Myers. Lawyer Michael Kuckelman shared notes he took when he was allowed to view and listen to body-camera video and audio from the scene of the Oct. 6 shooting in Sun City, a town of 53 northwest of Medicine Lodge. The recordings come from body cameras worn by a deputy and the sheriff.
Officials have not released the video.
The recordings show Undersheriff Virgil “Dusty” Brewer fired the beanbag round from a shotgun from less than 10 feet into Myers’ chest, Kuckelman said. The round hit just below the left nipple. Kuckelman said he bases the distance on what he saw in the video, what he saw at the scene and what he learned from an eyewitness.
According to guidelines in a 2009 report by Los Angeles-based Police Assessment Resource Center, the beanbag shot was too close and hit the wrong spot if it was intended not to be fatal. The report said that “beanbag rounds present a risk of death or serious physical injury at less than 10 feet when fired at the chest, head, neck, and groin.” The report put the “optimal distance for a beanbag” at between 21 and 50 feet.
Beanbag rounds, designed to be less lethal than normal law enforcement weapons, are not intended for “up-close encounters,” said Matthew Barge, a police practices expert and executive director of the center’s New York City office.
“You want to avoid center mass” when aiming, Barge said Monday.
Law enforcement agencies usually limit the use of a beanbag – a small fabric pillow filled with lead pellets and usually fired from a 12-gauge shotgun – to specially trained officers or supervisors, Barge said. That’s partly because beanbag shotgun use differs from handgun use, in which officers are trained to fire at the “center mass.”
The Barber County Sheriff’s Office has no written policy on beanbag use, Kuckelman said. It’s not clear whether Brewer had training in firing beanbags, he said.
Sheriff Lonnie Small couldn’t be reached for comment Monday.
The Wichita Police Department has a seven-page policy on use of less-lethal weapons.
“The body’s upper center mass … should be avoided, unless lethal force is the intent. … At less than 7 yards (21 feet) the risk of serious injury or death is greatly increased,” the policy says.
Beanbags must be used “with the utmost judicious consideration,” it says.
According to Kuckelman, 911 received a call at 6:26 p.m. and dispatched the first deputy less than a minute later.
The first deputy on scene, Deputy Mark Suchy, arrived at 7:07 at Buster’s Saloon in Sun City – about 41 minutes after the 911 call about a disturbance involving Myers. The Kansas Bureau of Investigation said the caller reported that Myers had been threatening people with a gun outside the bar.
Myers had worked in oil fields and was a ranch hand. He had had been drinking that day at Buster’s, Kuckelman said. Besides being a husband, he was a father of three children, ages 1, 9 and 11.
Myers ended up in a neighbor’s shed down the street from the restaurant and bar. Myers had already put a shotgun away at his home, where the gun was found hours after the shooting during a search, Kuckelman said.
Myers was obeying commands when he was shot, Kuckelman said Monday. “He had just responded to a sheriff’s command to come out the shed.”
Kuckelman has filed a motion in Barber County District Court seeking copies of law enforcement video and audio recordings of the shooting. A hearing on that has been set for Dec. 1.
Last week, the attorney said in a news release: “I have viewed the video, and what I saw was disturbing. Every resident of Kansas should be calling for this video’s release. The video captures an extreme violation of a man’s civil rights and a shocking use of excessive force.”
In interviews with The Eagle, Kuckelman said the audio began with Sheriff Small shouting, “Steven, come out of that shed.” The sheriff, Undersheriff Brewer and Deputy Suchy and a K9 dog were in the kitchen of a small house on Main Street.
Small gave the command through a screen door in the kitchen, toward the shed 15 to 20 feet away, Kuckelman said.
After Myers stepped out of the shed, the sheriff turned with the K9 dog and walked toward the front door – away from Myers.
It doesn’t make sense for the sheriff – as the supervisor – to leave just as the incident is unfolding and reaching a key stage, Kuckelman said. “That’s mind-boggling – you’re in charge,” he said. Also, the dog was being led away when the animal could have been used to help subdue Myers if needed, Kuckelman said.
According to Kuckelman, about eight seconds elapsed as deputies gave inconsistent commands to Myers.
Two people shouted commands: one excited voice saying, “On the ground!” another exclaiming, “Hands up!” Then: “On the ground!” All in quick succession.
“And then the gun goes off,” Kuckelman said. “It all goes very rapidly.”
Right before the shot, the video shows Myers’ left arm extended out in front of him. “He clearly no longer had the shotgun,” Kuckelman said. The other hand, his right, isn’t visible in the video.
No one ever yelled out that Myers had a weapon, he said.
It was toward the end of the day. But the sun still illuminated the back yard, and Myers could be seen clearly and closely by the undersheriff who fired, Kuckelman said.
‘You can’t’ then ‘boom’
Just before Myers suffered the fatal shot, he blurted out. “Damn it … You can’t…”
Deputy Suchy’s body camera didn’t capture the view of Brewer firing the gun. Later, the video shows someone taking the shotgun used to shoot Myers.
When Brewer fired, he had moved from the kitchen to just outside the screen door and was definitely less than 10 feet from Myers, Kuckelman said.
Under a policy like the Wichita Police Department has, Brewer should have realized he was too close to fire a less-lethal shot, the attorney said.
The shotgun went “boom.”
Myers yelled “Ow!” as the blast hit.
He pivoted, collapsed to his hands and knees, then went face down, the video shows.
His blood began pooling on the dirt.
On the ground, Myers didn’t move as Brewer put handcuffs on him.
At that point, the resident said, “God damn, that was a little drastic wasn’t it!”
Brewer rolled Myers, still in handcuffs, onto his back.
“He’s obviously dying,” Kuckelman said. “You can hear the air escaping from his lungs.” Blood covered the front of his T-shirt.
‘Pretty damn close’
The undersheriff left as two relatively new deputies did CPR on Myers, Kuckelman said. One deputy held gauze on the wound while the other did chest compressions.
After the sheriff put the dog in the patrol car, he went to the back yard, were Deputy Suchy told him: “Lonnie, he ain’t got a pulse.”
According to the audio, Suchy said it was difficult to do CPR because the wound was near where he needed to place his hand.
The coroner pronounced Myers dead at the scene at 8:08 p.m.
After the coroner saw the wound, Kuckelman heard him say: “That’s from a beanbag? Straight-on shot. Holy shit. Was pretty damn close.”
Deputy Suchy then noted some of the evidence: “Clear cartridge by the porch.”
During more discussion, an EMT asked whether Myers had a gun and Suchy answered, “No,” Kuckelman said.
According to the Kuckelman’s notes from the audio, as the coroner asked questions, Sheriff Small told Suchy, “Don’t tell him everything.”
About two minutes later, the sheriff told told Suchy to stop recording, Kuckelman said. And the recording ended.