Topeka attorney won't release body camera video after police fired 34 shots in killing man

Topeka city attorney Amanda Stanley on Monday denied a request from The Topeka Capital-Journal seeking body camera video taken Oct. 13 as five Topeka police officers fired 34 gunshots, killing Taylor L. Lowery after he raised a knife above his head and charged at one of them.

Releasing the video wouldn't be "in the public's interest," Stanley said while citing past Kansas court rulings to back up that assertion.

Max Kautsch, president of the Kansas Coalition for Open Government, disagreed.

Kautsch said a more recent court decision than those cited by Stanley indicates that the law on the issue involved "is not presently clear."

'Not in the public's interest'

The Capital-Journal last week submitted a Kansas Open Records Act request seeking police body camera video showing the fatal shooting of Lowery, 33, in a Kwik Shop parking lot at 4500 S.W. Topeka Blvd.

"The investigation revealed that each of the 34 projectiles fired was justified," said a report released last week by Kagay.

In denying The Capital-Journal's request Monday, Stanley said the videos involved are criminal investigative records, which the Kansas Open Records Act shields from public release unless they meet each of six specific requirements, with one being that the release of the record must be in the public's interest.

While the Kansas Open Records Act does not define "public interest," a 1987 Kansas Supreme Court ruling concluded "it must be a matter which affects a right or expectancy of the community at large and must derive meaning within the legislative purpose embodied in the statute," Stanley said.

"Moreover, the person requesting disclosure must prove that: (1) there is a legitimate public interest in disclosing; and (2) that the record will promote and serve that interest," she said.

Stanley said that District Attorney Mike Kagay, "the duly elected representative of the people," last week made public a 15-page report providing a detailed description of the shooting and the happenings that led to it.

"The body camera footage shows one small piece of the overall investigation and must be considered in context with the totality of the event," Stanley said. "The release of this video footage would not provide any additional information to the public. Additionally, the body camera footage includes footage of victims, including a minor, and other witnesses."

Stanley cited a 2000 Kansas Court of Appeal decision in saying, "As such, it is not in the public’s interest until such time as a court finds otherwise."

As the taking of a life is traumatic for the officers involved and is "always disturbing to view," the release of video footage of occurrences of that nature "should be held to the highest scrutiny and protection," Stanley added.

"In the absence of some other compelling factor not present in this case, it is also a clearly unwarranted invasion of the personal privacy of the officers to have the footage released when the District Attorney has found theofficers were justified in the use of force," she said.

Stanley made reference to a Kansas law that allows for family members to see body camera video of situations in which people are fatally shot by police.

Legislators in passing the law involved "made a policy choice to allow the family access to view the footage without requiring it be released to the public at large," she said.

More:Topeka police refuse to release body camera footage of June fatal officer-involved shooting

'A picture is worth a thousand words'

Kautsch responded that the city's reliance on Kansas Supreme Court precedent from 1987 and a Court of Appeals case from 2000 to justify the denial of the footage fails to consider that the Supreme Court found in 2002 that the law on the issue involved "is not presently clear."

Kautsch said, "At most, the cases the city cites provide questionable support for keeping the video out of public view, particularly where, as here, a person died from use of force by police, the related criminal investigation has concluded and District Attorney Kagay has announced that no charges will be filed."

Moreover, Kautsch said, whatever presumption that may have existed allowing law enforcement agencies to unilaterally close criminal investigation records was overcome in a pair of high-profile district court cases in 2021.

Those cases involved the disclosure of the police reports in an excessive use of force case resulting in the death of a 17-year-old boy in Overland Park and a court order to turn over body camera footage in two instances in Wichita where, as in Topeka, the credibility of a police department was called into question, he said.

Kautsch added, "As the Sedgwick County district court judge put it in that case, 'when there is misconduct or even alleged misconduct, it is in the public interest to know exactly what happened and what remedial steps have been taken to address such misconduct, if any.'"

Given that those relatively recent court outcomes involve similar facts, it is disappointing that Topeka's city government apparently intends to withhold the video of Lowery being fatally shot, Kautsch said.

Although the city is correct to point out that the video is only a small portion of the investigation, "a picture is worth a thousand words," he said.

"The taxpayers have a right to challenge or verify the DA's conclusion that the shooting was justified," Kautsch said. "Certainly, when 34 shots are fired and a person is killed, it is reasonable to wonder if the shooting was not justified, and that the officers committed misconduct instead. Only the video can provide the necessary context to make that determination."

More:Release of police body camera recordings varies across Kansas

Here's what Topeka law enforcement says happened

The names of the officers who shot Lowery to death haven't been made public. The district attorney's office won't seek to prosecute them criminally, Kagay said.

His report said the chain of events involved began just before 12:30 a.m. Oct. 13 when Lowery's sister called 911 to report he was trying to force his way into the bedroom in which she was barricaded in her home at 4842 S.W. Topeka Blvd., Lot No. 6. The woman's name wasn't given in the report.

Police arrived, saw Lowery holding a butcher knife inside the mobile home at 12:39 a.m. and ordered him to drop it, but he fled through a rear door, the report said.

It said police caught up with Lowery outside the mobile home, but he waved the knife around in a "fighting stance" while holding a socket wrench in his other hand.

Lowery then went back into the mobile home, where officers subsequently forced their way in.

Lowery came toward officers inside the mobile home, then left it through a rear door and drove away in a Chevrolet Equinox, the report said.

It said Lowery drove to the Kwik Shop lot at 4500 S.W. Topeka Blvd., parked the Equinox, approached another vehicle on foot and violently tried to pull a woman out of it.

Why did Topeka police officers shoot?

The report said officers got out of their vehicles, identified themselves as police and began yelling commands to Lowery as he tried to pull the woman from the car.

Lowery turned toward a police sergeant, screamed, raised the knife over his head and charged him, the report said.

It said the sergeant backed away but fired three times when Lowery was five to 10 feet away.

A police detective shot Lowery about the same time, which was 12:44 a.m., and he "went down," the report said.

Meanwhile, three other officers, one of them a sergeant, had taken up positions near Lowery, it said.

The report said he got up, grabbed an object and began moving again toward the sergeant before the three other officers shot him. The object was found to have been a socket wrench.

Officers then began rendering aid to Lowery, who was pronounced deceased at 12:57 a.m. at the scene, the report said.

"The autopsy performed on Lowery determined that he was struck by multiple projectiles and 10 projectiles were recovered during that examination," Kagay's report said. "The most significant injuries consisted of three gunshot wounds to the abdomen and three gunshot wounds to the chest. These gunshot wounds were determined to be the cause of death."

No one else was hurt.

Taylor Lowery was under influence of illegal drugs

Lowery was found to have been under the influence of amphetamine, methamphetamine and cocaine at the time of his death, Kagay said.

The five officers subsequently spent time on paid administrative leave, as is standard protocol for the Topeka Police Department, said Topeka police Chief Bryan Wheeles.

The Kansas Bureau of Investigation investigated the circumstances involved and provided its findings to Kagay, who responded by releasing last week's report.

"The involved officers placed themselves in imminent life-threatening danger in order to fulfill their obligation to protect the public," Kagay's report said. "It was only through their efforts in utilizing deadly force that they were able to finally bring an end to the danger posed by Lowery."

City attorney: Body camera footage totals 10-plus hours

The sergeant and detective who initially shot Lowery weren't assigned or wearing body cameras, and the location where the interaction took place was in a blind spot of the Kwik Shop cameras, Kagay's report said.

Body cameras worn by the other officers involved showed what happened after the initial shots were fired, it said.

In response to The Capital-Journal's KORA request seeking all body camera video involved, Stanley said, "The entirety of the video totals approximately 10 hours of video footage."

Contact Tim Hrenchir at 785-213-5934 or threnchir@gannett.com.

This article originally appeared on Topeka Capital-Journal: Topeka attorney won't release body camera video of police shooting