WICHITA, Kan. (AP) — A federal appeals court has ruled that jurors should be allowed to decide whether a white police officer in Kansas used excessive force nearly eight years ago when he fatally shot a black man as he was lying face down in a parking lot.

The U.S. Court of Appeals 10th Circuit in Denver found Wednesday that a reasonable jury could conclude that by the time then-Wichita Officer Aaron Chaffee fired his final shots, Marquez Smart was on the ground with his arms stretched out. The decision reversed a 2018 ruling dismissing the suit on the grounds that the officers involved couldn’t be sued under a doctrine that shields officials from civil liability in certain circumstances, The Wichita Eagle reports.

Wichita City Attorney and Director of Law Jennifer Magana declined to comment on the ruling in an emailed statement.

The shooting happened in March 2012 after someone wearing yellow fired a gun into a crowd at closing time in the city’s Old Town entertainment district as a handful of hip hop performances were ending. Chaffee, now a special agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives, and another officer thought Smart, who also was wearing yellow, was the shooter, followed him and shot at him, hitting him five times from behind.

Evidence cited in the Smart family’s lawsuit shows Smart had no gun on him when Chaffee fired the final volley of three shots into his back. Police found an empty .45-caliber handgun several feet away from Smart’s body and a magazine and bullet casings along the path Smart ran.

Court records say Smart didn’t point a gun at the officers or anyone else while he was chased and several witnesses said he didn’t have a firearm that morning.


Andrew Protzman, a lawyer for Smart’s parents and estate, told The Associated Press on Thursday that Smart was merely trying to escape and “was just wearing a yellow shirt unfortunately.” He said there was no evidence connecting Smart to the gun. He noted that many other people ran down the alley where the weapon was found.

Judge Carolyn McHugh wrote that when the facts are viewed most favorably for the plaintiffs, “Officer Chaffee violated clearly established law if he shot Mr. Smart after it would have been clear to a reasonable officer that the perceived threat had passed.”

Judge Robert Bacharach wrote in a dissenting opinion that the ruling “does not go far enough.” That’s because the majority affirmed the dismissal of two other claims brought against Chaffee and another white officer involved, Lee Froese, as well as a claim alleging the shooting resulted from unlawful policies, practices or customs adopted by the city and police department.

Bacharach wrote that the Constitution “clearly prohibited both officers from shooting an unarmed individual posing no threat to anyone.”

Protzman said, “The dissent really got it right. It really captured the facts and the legal issues. But the majority option is permitting us to present at least part of our case to a jury.”