Labette County Attorney Stephen Jones on Tuesday released his review of the Aug. 12 fatal shooting of a Chetopa citizen by a Chetopa police officer who was serving a search warrant.
No criminal charges will be filed against the officer, Jones concluded. Jones did not name the officer.
“I have a very, very specific question that I have to answer,” Jones said, and that is to determine if a crime was committed.
Four Chetopa police officers served a search warrant at 12:12:29 a.m. Aug. 12 at 1110 Cherry St., Chetopa, the home of Scott A. Souders, 38. Law enforcement and the Kansas Bureau of Investigation said Chetopa police were seeking evidence of marijuana cultivation on Souders’ property.
Jones said the officers knocked loudly on Souders’ wooden front door for 90 seconds, saying loudly “police department,” “search warrant” and “police department, come to your door or I’m gonna break down your door.”
At 12:14:04 a.m. officers used a sledge hammer to breach the locked door. Sixteen seconds later the officers were inside the home.
The lead officer walked into the front room, closely followed by two other officers. The lead officer worked his way to a hallway. There, at 12:14:34 a.m., Souders yelled, “Freeze, (expletive),” Jones wrote in his review. The lead officer saw Souders with a rifle similar to an AR-15 in the shooting position and yelled again “police,” “search warrant.” At 12:14:35 a.m., the lead officer fired three shots, who of which struck Souders. One of them caused a fatal wound.
A 25-year-old woman was in the house with Souders. After the shooting, officers left quickly and took cover and the Labette County Sheriff’s Department responded. Once the sheriff’s deputies arrived, officers called for the occupants of the house to come out. Soon after the woman came out, the KBI said previously.
Police again entered the home and found Souders suffering from gunshot wounds. A rifle was found near him. Souders was pronounced dead at his home.
In his review, Jones wrote that in July, three or four weeks before the search, Chetopa police received a tip about the odor of marijuana at 1110 Cherry. Sometime after that, police opened an investigation.
On Aug. 11, two Chetopa police officers drove to 1110 Cherry and attempted to speak to the occupants.
The two officers rang the doorbell and knocked on the storm door several times, Jones wrote. The police officers could hear nothing but barking dogs inside the home. After getting no answer, police opened the storm door and knock directly on the wooden front door. As the storm door was opened both officers smelled the odor of green marijuana. One of the officers heard someone inside tell the dogs to stop barking. No one answered the door.
Jones wrote that the officers believed they had enough information to apply for a search warrant for the home. Later the evening of Aug. 11, officers applied for a search warrant. At about 11 p.m., a judge signed the search warrant.
Shortly after getting the warrant, four Chetopa officers planned how to execute it, which they did about midnight.
Jones wrote that he reviewed the KBI investigative reports as well as narrative reports compiled by the sheriff’s department and Chetopa police. He also reviewed video footage.
Jones wrote that his four-page review was limited in scope by state law. He could only look at the criminal liability in the lead officer who fatally shot Souders.
“The Labette County Attorney’s Office has no administrative or civil authority regarding use of force investigations. Therefore, this report does not address any administrative review that may be conducted by the Chetopa Police Department, provide any assessment of policy considerations, or address questions of possible civil actions where a lesser burden of proof would apply,” Jones wrote.
Questions about whether the use of force in any case could have been avoided or de-escalated if the officer or citizen had behaved differently in the moments leading up to the fatal use of force are not properly addressed in a criminal investigation, Jones wrote.
In Kansas, all persons, law officers included, may defend themselves against unlawful force.
K.S.A. 21-5222 states that a person is justified to use force against another when that person believes force is necessary to defend against the imminent use of unlawful force. Deadly force is justified if a “person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.” The law also says that a person is not required to retreat “if such person is using force to protect such person or a third person.”
The Kansas Supreme Court requires a two-prong test to analyze a self-defense claim. The first is subjective and requires a showing that the person who used deadly force believed it necessary to kill to defend himself or herself or others. The second is objective and requires a showing that a reasonable person in the same circumstance would perceive the use of deadly force necessary for self-defense, Jones wrote.
The law states a person who acts in self-defense or to protect a third party is immune from prosecution.
Officers by law also have the ability to apply reasonable force when making an arrest to defend himself or another from harm. The use of deadly force means the officer reasonably believes that force is necessary to prevent death or great bodily harm to him or her or to another person.
Jones writes that deadly force in self-defense is judged on a case by case basis. “Only such force reasonably needed to defend against another’s imminent use of unlawful force is legally permissible under Kansas law,” he wrote.
The Chetopa police officer who shot Souders Aug. 12 exercised the use of deadly force. Since 2011, Jones writes, Kansas law says that someone who acts in defense of himself or to protect a third party is immune from prosecution. This means a person may not be charged, prosecuted (or subsequently sued) unless the state can establish that they were not acting reasonably under the circumstances, he wrote.
The U.S. Supreme Court defined the review of the officer’s reasonableness to use deadly force must be made in the context in which the officer found himself, not from the perspective of hindsight.
“The investigation found no evidence to establish beyond a reasonable doubt that the officer’s use-of-force in defense of himself and/or the other officers at the scene was unreasonable under the circumstances,” Jones wrote. “The investigation indicates there is no evidence to prove beyond a reasonable doubt that the lead officer acted in an unreasonable manner in the defense of himself and/or other officers at the scene.
“Under Kansas law and the facts of this case, I conclude that no criminal charges will be filed against the officer.”
Jones would not say if marijuana was found as it did not relate to his review.