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

A couple from the Oglala Sioux Tribe can sue a police officer in South Dakota for fatally shooting their unarmed son, the 8th Circuit Court of Appeals ruled today.

Christopher Capps, 22, was shot and killed by Pennington County Sheriff's Deputy David Olson on May 2, 2010. The officer claimed Capps was charging at him with a weapon although an autopsy showed that the young tribal member was shot at least once in the back.

A confirmed weapon was never uncovered at the scene although Olson and a witness claimed that Capps, at some point during the encounter, had something in his hand. The witness, however, refused to provide his account under oath in response to a civil rights lawsuit filed by parents Jerry and Jaylene Capps.

Olson, meanwhile, tried to get the suit dismissed by citing his qualified immunity as a law enforcement officer. But the 8th Circuit said the "totality of the circumstances" indicated there were significant facts that need to be resolved.

"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," the 8th Circuit stated. "Because we must construe the facts in the light most favorable to Capps at this stage, we accept [an expert's] conclusion that Capps was not facing Deputy Olson when Deputy Olson fired his first round."

Additionally, since a confirmed weapon was never recovered, the 8th Circuit said it was possible that Capps "did not have a weapon and that Deputy Olson did not believe Capps had a weapon." Again, the court said the issue is a matter of fact that needs to be resolved.

"There are genuine issues of material fact," the court concluded. "At this stage in the proceedings, Deputy Olson is not entitled to qualified immunity as a matter of law."

The incident occurred in Rapid City and heightened racial tensions in the community. Since then, another Indian man, Allen Locke, was killed by a police officer, and 57 Indian students were victimized at a hockey game, an incident that resulted in just one misdemeanor charge against one person.

8th Circuit Court of Appeals Decision:
Capps v. Olson (March 16, 2015)

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