Winfield’s police department violated Danny Fruits’ civil rights and wrongfully caused his death during an officer-involved shooting at Tunnel Mill Dam last year, according to a lawsuit filed by Fruits’ family. (view PDF)
The suit names the city of Winfield, Winfield police chief Jerry DeVore and an unidentified plain clothes officer, referred to in the filing as John Doe, as defendants. The eight-page complaint consists of four counts: two civil rights violations, a wrongful death count and a fourth claim based on Kansas tort law.
“John Doe could not have reasonably believed that deadly force was necessary to prevent the arrest of Fruits from being defeated by resistance or escape,” the suit reads.
For each count, the Fruits family seeks more than $75,000 in damages. NewsCow.net was the first to report in June that the family had filed notice with the city of an impending suit.
Wichita-based law firm Joseph & Hollander formally filed the suit on behalf of the family in July. NewsCow obtained a copy from the United States District Court for the District of Kansas in Wichita, where the complaint was filed.
Jack and Dorothy Fruits, Danny Fruits’ parents, Hilda M. Sumner and Gretchen I. Kittleson, Fruits’ sisters and Daniel N. Stearns, Fruits’ son, are the plaintiffs listed.
The suit is a civil filing. Cowley County Attorney Christopher Smith, after an investigation last year, issued a report concluding that the unidentified officer was not criminally liable for Fruits’ death.
An attorney for the city’s insurance company is representing the defendants in the case. If a settlement is not reached, the matter would go to trial.
The complaint makes a number of assertions that the plaintiffs contend prove Fruits was wrongfully killed following a robbery in Winfield March 8, 2006. Details of the suit include:
ALCOHOL: The plaintiffs conceded that Fruits, Steven Charles Higgins and David Kerr drove to the Smoker’s Choice tobacco shop in Winfield under the influence of alcohol. Higgins was identified as the driver of the Jeep Cherokee.
Smith’s report last year (download PDF) never mentioned Kerr or that he was in the vehicle.
ROBBERY: One of the three men entered the smoke shop and demanded money from the cashier, Cheryl Baumgartner. When Baumgartner refused to turn over any money, the person grabbed a small cash register and fled.
“Baumgartner ran after the person and grabbed him, but he was able to get free, get into the Jeep, and get away,” according to the suit.
The complaint does not identify which of the three men entered the smoke shop. That differs from the county attorney’s report which identified that person as Danny Fruits.
LOCATION: The three suspects fled to Tunnel Mill Dam and were able to open the cash register just before officers arrived and blocked off the only exit to the dam area. Suit notes that all the men were still inside the vehicle and that Kerr and Higgins were arrested without incident.
WITNESS: The suit contends that Mark Hammond was at a picnic at the dam and witnessed John Doe shooting Danny Fruits.
“Hammond saw Fruits standing outside the Jeep. A plain clothes officer had a pistol trained on Fruits. Fruits had his hands in his pockets. The officer ordered Fruits to take his hands out of his pockets. Fruits flung his hands in the air. When he did so, the officer shot Fruits once. Fruits fell down where he was shot.
Hammond did not witness Fruits yell at the officer or act aggressive in any way.
Fruits did not attempt to run. Fruits did not have a weapon or anything that could be mistaken for a weapon. When Fruits flung his hands in the air, Hammond saw an empty plastic bag fly out of Fruits’ pocket into the air and float there.”
Fruits died from a single gunshot wound a short time later.
Last year’s report from the county attorney’s office concluded that Fruits was unarmed at the time of the shooting. But the report indicated Fruits resisted exiting the vehicle for a short time and yelled things at officers, including “I’m not going anywhere,” and “You are going to have to shoot me.”
FEDERAL CIVIL RIGHTS CLAIM: The suit alleges that officer John Doe deprived Fruits of his Fourth Amendment right to be free from unreasonable seizure by ending his life. DeVore and the city also violated Fruits’ civil rights, according to the suit, by failing to properly train the officer in the use of deadly force.
The suit also includes a claim of wrongful death and a claim under tort law that makes Kansas employers responsible for the actions of their employees.
JOHN DOE: The suit notes that neither the city or the county attorney’s office has made public the name of the officer who shot and killed Fruits. Family of the suspect has pushed from the beginning to have the officer named on the record and his family has indicated in the past that civil proceedings might bring about the release of more information about the incident.
