Jaylene Capps, left, composes herself while she and her husband, Jerry, speak at the Mother Butler Center on Tuesday, June 1, 2010. The couple spoke at a rally after their son, Christopher J. Capps, 22, of Rapid City, was killed by a Pennington County Sheriff's deputy about a month earlier. 

A federal appellate court has ruled that the Pennington County deputy who shot and killed Christopher Capps in May of 2010 is not immune from a wrongful-death lawsuit.

Deputy David Olson sought to have the case dismissed, claiming he was a public employee and thus immune from prosecution.

The U.S. Court of Appeals for the 8th Circuit last week upheld Chief U.S. District Judge Jeffrey Viken's decision concerning the lawsuit filed by Jerry and Jaylene Capps in 2012 on behalf of their Native-American son. The parents claim the deputy violated their son's constitutional rights and used excessive force.

When he denied the deputy's motion to dismiss the case a year ago, Viken ruled that he could not conclude that Olson is entitled to immunity.

The appeals court agreed, concluding that "at this stage in the proceedings, Deputy Olson is not entitled to qualified immunity as a matter of law," according to court documents.

In his ruling, Viken noted that Capps' parents and Olson "present diametrically opposed scenarios" as to how the shooting took place.

The appellate court decision again backed Viken: "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 Capps' expert witness has testified that Olson's first shot entered through the back of Capps left shoulder, indicating that the young man was turned away from Olson when his weapon fired.

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Olson's expert, however, has a different take on the wound in the back. He testified that Capps could have spun or lunged during the shooting, or slumped forward, resulting in the wound.

Olson has argued that his actions that day were reasonable under the circumstances. He pursued Capps after a reported assault on a teenager at a Black Hawk trailer court on May 2, 2010.

A resident of the trailer court, Darrell Schribner, was chasing Capps through an open field when Olson approached the two men. 

Olson claims he fired after Capps started running toward him holding something that appeared to be a knife. A knife was never found at the scene, but a small piece of driftwood was in the grass near his body.

"There is sufficient evidence in the record upon which a jury could find that a reasonable officer, in Officer Olson's position, would conclude Mr. Capps was not armed and did not constitute a threat of serious bodily injury," Viken wrote in his ruling.

Drawing on previous court records, Viken went on to say that "the facts viewed in the light most favorable to plaintiffs could establish an excessive use of force in violation of decedent's constitutional rights."

No additional court dates have been scheduled since the Court of Appeals' decision.

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Contact Andrea J. Cook at 394-8423 or andrea.cook@rapidcityjournal.com

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