Police say they shot Kansas man because he reached for a gun. A judge isn’t so sure.

A federal judge watching body cam video of a controversial police shooting in Topeka says it’s not clear that a man was reaching for a gun when officers fired at him.

As a result, the two police officers can be deposed as part of an ongoing civil lawsuit filed by the family of Dominique White, a black Topeka man who was shot and killed on Sept. 28, 2017.

The homicide provoked outcries from some who questioned the department’s use of force as well as its relationship to the community, particularly with people of color. Residents became increasingly angry as the Topeka Police Department refused to release information, including video, to the public.

Months later, a death certificate revealed White was shot in the back. When the video eventually became public, it showed White was running away as the officers shot him.

Public pressure eventually led to changes within the department and state law regarding access to body camera footage.

Shawnee County District Attorney Mike Kagay declined to file criminal charges against the officers, who are white, contending that as White fled, his hand hovered over a pants pocket that contained a firearm.

However the federal judge in the civil case wasn’t as convinced.

“The court has viewed both videos multiple times and finds the videos equivocal at best, on whether Mr. White reached for his gun,” U.S. District Court Judge Daniel D. Crabtree wrote in an order earlier this month.

Crabtree wrote that because the video can’t on its own answer whether White could have been reaching for a gun, the shooting officers, Michael Cruse and Justin Mackey, can be deposed to determine their perceptions of White’s movements and their decision making processes in discharging their weapons.

In one video, White’s hand motions are blocked by the officer’s hands and gun. In the other video, “a reasonable jury could conclude that Mr. White momentarily lost his balance after spinning out of Officer Cruse’s grasp, then moved his hand consistent with a running motion, but did not reach for his pocket,” Crabtree said.

The order also points out that Mackey said he fired because White had a gun and not because White reached for a gun.

Asked about the lawsuit this past week, a spokesman for the Topeka Police Department issued a short statement by email.

“We understand that this is part of the judicial process and we must allow the process to continue through its entirety,” Topeka police Lt. Andrew Beightel said.

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Dominique White was killed on Sept. 28, 2017, in Topeka. File photo

Family seeks justice

White’s relatives are still coming to grips with their loss.

They believe the lawsuit is their only chance at getting any type of justice since criminal charges weren’t filed. The civil suit was filed by White’s father and White’s four sons, who range in age from 5 to 15.

The oldest two boys are angry, said White’s mother, Theresa Wynne, and they fear police officers. His third son has autism and doesn’t understand the situation. The 5-year-old says he still talks to his father, relatives say.

White’s stepfather, Brock Wynne, said grief comes in waves.

“This is something that none of us are ever going to get over,” he said.

They remember White as being a caring father who liked to tell jokes and do impressions.

“Our saying for him is ‘laugh and love till the end’ because he was always laughing, always teasing,” Theresa Wynne said.

He always seemed to have a smile on his face. But underneath, they believe he struggled. He was hard on himself at times, Brock Wynne said. That was apparent in the last few years of his life when a relationship fell apart and he began getting into trouble.

They acknowledge White had a criminal history, including felony convictions for burglary in 2014 and possessing a weapon in 2016. The convictions legally barred him from possessing firearms.

But the interaction at the park didn’t warrant a death sentence, Brock Wynne said.

“When they gunned him down like an animal in the street they didn’t know his name, they didn’t know he had a record, they didn’t even know if he even had the right to carry a firearm,” he said.

Theresa Wynne said she thinks her son became frightened when the officers grabbed him.

“Fight or flight is a real thing,” she said.

Police body cam footage shows Dominique White fleeing as he was shot and killed. Topeka Police Department

‘License to kill’

On the day of the shooting, body cam videos show officers Cruse and Mackey responding to a report of gunshots at an East Topeka park.

In the video, the two officers encounter White, who is on foot. The officers get out of their cars. Cruse asks if White has any guns, and Mackey points to a bulge in White’s back. The officers surround him.

“Man, please don’t touch me,” White says.

Mackey tells Cruse there’s a gun in White’s pocket and orders White to lie down. When Cruse grabs White’s wrist, White wrestles away and begins to run.

The two officers shoot White several times as he runs away.

Only after filing a legal action was White’s father, Kelly White, allowed to view the footage.

Relatives advocated for a measure signed into Kansas law in 2018 requiring police to turn over videos to families or their attorneys within 20 days of a request.

The department said it learned lessons from the shooting and is committed to building relationships with the community.

However White’s family isn’t convinced.

“You can’t close that gap if you don’t hold those that have caused that gap accountable,” Brock Wynne said.

Cruse and Mackey remain on the force, the department said on Thursday.

Theresa Wynne pointed to a recent controversy surrounding a tweet the department posted on Father’s Day and later deleted. The post encouraged mothers to turn in the father of their children for warrants, drugs and other crimes. The department apologized for the post.

Theresa Wynne said the tweet shows the mindset of the person who posted it and questioned why the department wouldn’t release that person’s name in an effort to be transparent.

She said more changes are needed, both within the department and to state laws.

“This impunity is ridiculous,” she said. “It’s giving them a license to kill.”

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Katie Moore covers crime and justice issues for The Star. She is a University of Kansas graduate and was previously a reporter in her hometown of Topeka, Kansas.