Oversight Board Raises Issues Over Mark Capps Killing – Petition Launched
Ever since the officer-involved shooting and killing of four-time Grammy-winning music engineer Mark Capps at his Nashville home on January 5th, members of the music community have been raising questions about the circumstances surrounding his death, and they are not the only ones. Nashville’s Community Oversight Board is also raising concerns of how they were notified about the killing, along with raising other issues about how the incident was handled by Metro Nashville Police.
Meanwhile, new issues have been raised about the previous conduct of the officer who shot Mark Capps, and a new petition has been launched by members of the music community looking for answers and accountability.
Nashville Community Oversight Board Issues
Some of the many questions that friends and colleagues of Mark Capps are asking is why was a SWAT team used when Mark Capps had no prior criminal history? Why did SWAT officers not try to open a line of communication with Mark and coax him out of the residence? Why weren’t mental health professionals involved, or close friends and family members brought in who potentially could have been used to de-escalate the situation? Why didn’t police announce their presence in the area?
Instead, while SWAT Officers were attempting to perform a self-described “covert operation” to place an explosive device on the front door of his house, Mark Capps opened the door, allegedly with a gun in his hand, causing one of three SWAT officers on the porch to open fire, killing the 54-year-old.
The Nashville Community Oversight Board was impaneled in 2018 as an official entity of the Nashville city government with the power to investigate allegations into Metro Nashville Police Department officers committing misconduct against members of the public, as well as issue policy advisory and resolution reports assessing allegations of misconduct by the Metro Nashville Police Department.
Any time there is an officer involved shooting, the Community Oversight Board and its Executive Director Jill Fitcheard are supposed to receive notification through an official channel. That did not happen in the case of Mark Capps until well after the incident. Fitcheard instead heard from the board’s police liaison, and then called office of The Director of Emergency Communication at the Metro Nashville Police Department to find out why she had not been notified. After she did not get an answer through that line, she then called a separate supervisor’s line. At that point Fitcheard was told that there had not been an officer involved shooting.
“I was a little taken aback by that because I’m not understanding why that wasn’t connected through the department of emergency communications,” Jill Fitcheard said at the Community Oversight Board meeting on January 25th. “[The Supervisor’s line] didn’t really have any good answers, and then said that officers were on the scene, but had not called [any officer involved shooting] in. That was startling.”
When Jill Fitcheard and other members of the Community Oversight Board arrived, Fitcheard says, “The local news media was already set up, the TBI (Tennessee Board of Investigations) was there, the FOP attorneys (Fraternal Order of Police) were there, the FOP investigators were there. It was a full scene. All of these people are on the scene prior to us arriving, and already set up.”
Commander Lauren of the Metro Nashville Police clarified at the January 25th meeting that Fitcheard had been notified, just not through the proper channel, but could not explain why it had taken longer for the Community Oversight Board to be notified compared to other entities, including the media. “I could not tell you how [the media] got notified, unless it went through the PIO office,” Commander Lauren said. “But I don’t want to speak on that because I don’t know who notified them.”
After Director Jill Fitcheard arrived, she said that she observed multiple SWAT team officers already speaking to FOP attorneys, including the shooting officer Ashley Kendall Coon who was in a van with a FOP attorney for 30 minutes. “Both attorneys and the officers were allowed to go beyond the tape and into the perimeter, and were able to enter the incident scene, walk to the front of the residence where the shooting occurred with the assistance of the TBI.”
At that time, none of the evidence had numbered placards on it yet to catalog where it was in the crime scene. “They are able to walk through the scene and view it with the attorney with a TBI agent. It’s very peculiar,” Fitcheard said, who also raised questions about why the body of Mark Capps was removed so quickly after the shooting, concerned that it might also hamper the investigation.
Community Oversight Board Secretary Drew Goddard asked for a detailed timeline of when individuals were notified about the shooting to be constructed, while board member Walter Holloway—a retired Metro police officer with over three decades of experience—characterized the delay in notifying the Community Oversight Board about the killing by saying, “Sounds like you need to clean up something before you get there,” implying that the delay in notifying the board was intentional.
The relevant portion of the January 25th Community Oversight Board meeting can be seen below.
Concerns with TBI (Tennessee Bureau of Investigations) Handling The Investigation
In all cases of officer involved shootings in Tennessee, the Tennessee Bureau of Investigation is put in charge of the investigation. The killing of Mark Capps is no different. However, questions have been raised about the objectivity of the TBI investigating the incident after it was revealed that a TBI police officer was in the home when the alleged threats and kidnappings that resulted in the arrest warrants for Mark Capps occurred.
Neither in the press conference held by Metro Nashville Police Public Affairs Director Don Aaron on January 5th after the shooting, nor in the Critical Incident Briefing accompanying the body camera footage release did anyone intimate that there was a fourth individual in the home when the alleged kidnapping and threats occurred. Saving Country Music verified on January 18th that the boyfriend of the 23-year-old stepdaughter was also in the home at the time, and that the boyfriend is an officer for the Tennessee Bureau of Investigation.
“We can confirm an off-duty TBI police officer (whose primary job is to provide security at TBI offices) was at the home as a guest of the step-daughter referenced in media reports the night prior to Friday afternoon’s shooting,” said TBI spokesperson Susan Niland. “He left the home before the two women reported their concerns to Metro Police. The TBI notified District Attorney General Glenn Funk of this information when it surfaced and he requested we remain in an investigative capacity in this ongoing case.”
Not only was it a surprise to many that a fourth individual was in the home at the time of the alleged kidnapping, the information that the boyfriend left during the period when the wife and stepdaughter of Mark Capps were allegedly being held against their raises questions about the characterization of Mark Capps kidnapping the individuals, along with the question of why the boyfriend/TBI Officer did not report the ongoing incident to police after he left the house, or when he arrived at work at the TBI as was his sworn duty.
The next Community Oversight Board meeting is on Wednesday, February 22nd. Though individuals are not allowed to address the committee and they will not be able to divulge certain details about an active investigation, they are expected to broach the Mark Capps incident once again during the meeting. Saving Country Music has reached out to the Community Oversight Board for comment, and to attempt to obtain the report from Director Jill Fitcheard, but has not heard back at the time of this article.
Previous Incidents with Officer Ashley Kendall Coon
Also this week, Nashville’s NPR affiliate WPLN was able to obtain the personnel file for Officer Ashley Kendall Coon, who was the SWAT officer who shot and killed Mark Capps. According to the report, Officer Coon has filled out at least 20 use-of-force reports over his 14-year career, with each incident reviewed by a supervisor, and deemed appropriate.
However, Coon was suspended eight times in the first five years of his tenure on the force for various infractions according to WPLN, including a couple of incidents where he allegedly inappropriately touched women while in the line of duty, and another for a dangerous vehicle pursuit of a suspect. Coon has not been suspended since 2013.
One case that bears a resemblance to the Mark Capps incident occurred when Officer Coon and other Metro Nashville officers were involved in a “knock and talk” procedure with a neighbor. After not receiving a response at the front door, Coon went to a side door. The homeowner reportedly though Coon was an intruder and came to the door with a firearm. Coon and other officers pulled their weapons on the homeowner. However, unlike in the Mark Capps incident, they did not shoot, though the homeowner was not considered a suspect at that time, just a potential witness.
Saving Country Music cannot independently verify the information in the WPLN report, and has made its own request via the Metro Nashville Police for the personnel file of Ashley Kendall Coon, as well as the two other officers that were present on the porch of the home of Mark Capps in Nashville’s Hermitage neighborhood when the shooting occurred.
Body Camera Footage
Friends and colleagues of Mark Capps are also frustrated that the full body camera footage from all three of the SWAT officers involved in the incident has not been released to the public. Though a portion of the body camera footage from Officer Coon was released hours after the shooting in a Metro Nashville incident report, it does not accurately show if Mark Capps was holding a gun, or if he brandished the gun, or made any other aggressive moves toward the officers. It does show that Mark was given less than a second after Officer Coon shouted “Show me your hands!” before he was shot three or four times.
Metro Nashville Police Public Information Office Executive Assistant Noelle Yazdani tells Saving Country Music that due to the ongoing investigation, further body cam footage will not be made available to the public. Saving Country Music also spoke to Leslie Kimbel of the Metro Nashville Police Records Department that handles the release of body camera footage. Kimbel explained that due to the amount of requests, body cam footage requests take an average of six months to fulfill, and that footage involving either deceased individuals, or significant footage inside a private residence would be redacted.
In other words, the likelihood of the public obtaining further body camera footage from the incident to help answer the lingering questions about the Mark Capps killing is unlikely in the near term, unless a lawsuit or other legal action is able to expedite the process. However, Saving Country Music has made open records requests for all of the body camera footage.
Petition Launched
Asking for the full body camera footage to be released, and the answers to other lingering questions is the focus of an online petition started by Friends of Mark Capps. “As we wait for the Tennessee Bureau of Investigation and the MNPD Office of Professional Accountability to complete their work, there have been no answers to any of the central questions,” the petition states before laying out a host of questions many people in the Nashville music community and beyond continue to ask.
The Backstory of the Incident
According to Metro Nashville Public Affairs Director Don Aaron, the incident began when Mark Capps allegedly went on a tirade at his home in Nashville around 3 AM on January 5th, throwing things in the house and ultimately holding both his 60-year-old wife and 23-year-old stepdaughter at gunpoint, allegedly telling them that if they tried to call anyone or flee the home, he would kill them. When Capps eventually fell asleep around sunup, the two women were said to have escaped with their pets to the Hermitage police precinct where they explained to police what happened.
Four total warrants were issued for Mark Capps, two for aggravated assault and two for kidnapping, and a request for a protection order was also processed. It was due to the concern for the firearm Capps had allegedly used to threaten the two women and the presence of other firearms at the residence that Metro Nashville Police chose to use the SWAT team.
The incident occurred at a time when Mark Capps was said to be under great duress. Mark’s brother Jeffery Allen Capps had died two days prior to the incident. Mark Capps worked as the sound engineer for Grand Ole Opry members The Isaacs. On December 15th, Becky Isaacs was hit head-on in a two car collision in Hendersonville, Tennessee, and hospitalized. This resulted in the Isaacs having to cancel numerous tour dates, which put Mark Capps out of work right around the Holidays.
Mark Capps was a prolific studio engineer with engineering credits tracing back to 1991. Alabama, The [Dixie] Chicks, The Mavericks, Brooks & Dunn, Clay Walker, and Elizabeth Cook are some of the many artists Capps worked with in his career. Capps was also a co-winner of Grammy Awards for Best Polka Album in 2005, 2006, 2007 and 2008. His father was legendary Grand Ole Opry guitar player Jimmy Capps, also known as “The Man In Back.”
Mark Capps never fired a shot in the incident, police had never been called to the house before for a domestic disturbance or anything else, and Mark Capps had no prior criminal record.
Officer Ashley Kendall Coon has not returned requests for comment on the incident, or released any official statement about the incident.
February 17, 2023 @ 10:21 am
Every aspect of this continues to not add up. Thanks for your continued work on this very important story.
February 17, 2023 @ 10:49 am
Sounds like failures all around, which cost him his life.
At the beginning of the article, I was wondering how this would be relevant to what happened before the shooting. But as I read further, I realized that coming to the bottom of these things and holding people accountable to the extent that wrong was done, can help prevent it in the future. Kudos to you, Trigger, for continuing to cover this story.
February 17, 2023 @ 1:22 pm
It can’t be said enough: “Thanks for all your efforts”.
February 17, 2023 @ 2:11 pm
Trigger has done more to shed light on this case than any other journalist although he is not Nashville based. The Friends of Mark Capps are grateful for all his heavy lifting. Maybe the spread of this latest report will get Nashville media off the sidelines. The petition may hit 300 signatures soon.
February 17, 2023 @ 4:11 pm
I second that!
February 17, 2023 @ 2:53 pm
Trigger, I can’t thank you enough for your skillful and concerted efforts to investigate and corroborate facts and information in such a concise, and yet comprehensive composition!
I lived in Tennessee for only a year. During that short stint, I tried to learn to be an advocate for victims of crimes in a nearby Judicial District, and offer moral support, but things got too dicey and abstract for me.
I pray that Mark Capps’ murder will not be swept under the rug, and may encourage Tennessee to end this statewide pattern of denial and cover-up. I believe the people of Tennessee have the wherewithal to stand for accountability and transparency with a reasonable and respectable, yet relentless energy and united voice. I wish I had the clarity on how to influence such a charge.
My heart goes out to Mark’s family, friends, and colleagues due to this tragedy. I pray that Mark’s legacy will be a catalyst for good in the big picture. I also pray that all parts of the system, from the police, TBI, District Attorneys, Judges, et al, will be motivated to effect changes in their respective roles so that good people don’t become criminals due to desperation, complacency, agenda, confusion, percieved coercion…
February 17, 2023 @ 3:58 pm
Great article. I’ve felt from the beginning that this was all a sham. Seems like this guy was basically murdered. Not killed by someone acting in the line of duty or because he resisted arrest, no just plain murdered. I really doubt the truth will come out but hopefully it will.
February 17, 2023 @ 7:51 pm
Thank you very much for staying in top of this story and being the only journalist giving it the attention it demands.
Mark’s loved ones deserve answers and he deserves justice if police actions are proven criminal or negligent.
Regardless of the investigation’s outcome, he didn’t deserve to die.
February 18, 2023 @ 12:26 am
“Some of the many questions that friends and colleagues of Mark Capps are asking is why was a SWAT team used when Mark Capps had no prior criminal history? Why did SWAT officers not try to open a line of communication with Mark and coax him out of the residence?
…Instead, while SWAT Officers were attempting to perform a self-described “covert operation” to place an explosive device on the front door of his house, Mark Capps opened the door, allegedly with a gun in his hand, causing one of three SWAT officers on the porch to open fire, ”
Well, I believe the answer to the questions is obvious: Engaging in the covert operation of placing an explosive device on the guy’s door is a lot more exciting and macho “secret agenty” than “opening a line of communication,” which sounds kind of beta and wimpy.
February 18, 2023 @ 12:37 am
What if it comes out that it was suicide by cops??
February 18, 2023 @ 12:54 am
Perhaps that is what the investigation will determine. I’ve been told by numerous sources that in the 48 hours before Mark Capps was killed, he was making future plans, which someone planning to commit suicide usually doesn’t do. That said, he was clearly in a very depressive state. The bigger concern raised by friends and family is why the SWAT team sent three armed officers onto the porch if they thought Mark Capps was a danger? Did they really think they wouldn’t notice three SWAT Officers on his front porch placing a bomb on his door? If they think he is a threat, why put the officers in that potentially risky situation?
February 18, 2023 @ 7:00 am
Mark believed that as a Christian those who take their own life would not enter heaven.
February 18, 2023 @ 12:56 am
“However, Coon was suspended eight times in the first five years of his tenure on the force for various infractions according to WPLN, including a couple of incidents where he allegedly inappropriately touched women while in the line of duty, and another for a dangerous vehicle pursuit of a suspect. Coon has not been suspended since 2013.”
Wow, how many suspensions does it take to get an officer terminated in that department?
Sounds like Officer Coon was in foul trouble, and the refs didn’t want to call him for any more infractions. (Either that or he suddenly transformed himself from wanting to be Rambo to wanting to be Mr. Rogers.)
February 18, 2023 @ 7:51 am
And, i still want to know about the relationship between Loose Cannon Coons, and the tbi officer, who was having an affair with Capps stepdaughter.
February 18, 2023 @ 2:19 pm
Mark and I worked together for 3 years and he was the kindest person you could meet, as well as a faithful Christian. He was clearly having issues with the loss of his brother and his lack of work at the same time. He needed help and not a speeding bullet. May he somehow Rest In Peace despite the way he was taken from this earth.
February 18, 2023 @ 4:46 pm
He was my nices dad anytime I saw him he was a really nice man .Really respected him so sorry for how this happened could have been handled differently
February 18, 2023 @ 4:54 pm
This isn’t the only incident with over zealous cops in this country… it is way too frequent…
February 19, 2023 @ 11:43 am
Total bullshit. Many other ways to get him out of there.
February 19, 2023 @ 10:36 pm
I sincerely hope the answer is discovered.
February 20, 2023 @ 2:51 pm
The State of Tennessee Legal Code, an analysis.
40-7-106. Notice of authority and grounds for arrest — Telephone call.
When arresting a person, the officer shall inform the person of the officer’s authority and the cause of the arrest, and exhibit the warrant if the officer has one, except when the person is in the actual commission of the offense or is pursued immediately after an escape
Mark was not “in the actual commission of the offense(s)” he was accused of when he opened his door. If Officer Coon was indeed attempting to arrest Mark while he was pointing his rifle at him and yelling, he certainly, at no point, informed Mark of his authority as an officer or the cause of his arrest. “Shall” means mandatory.
40-7-107. Authority of officer to break in.
To make an arrest, either with or without a warrant, the officer may break open any outer or inner door or window of a dwelling house if, after notice of the officer’s office, authority and purpose, the officer is refused admittance.
The SWAT officers were in the process of placing an explosive device on Mark’s door when he confronted them. Legally, this device could not be used until AFTER they had identified themselves and notified him that he was under arrest. Admittedly, they attempted to keep their presence and “work” concealed from Mark, but, it also follows, that, in doing so, they were simultaneously withholding their authority as police officers from Mark, as well as the fact that he had multiple warrants out for his arrest. Am I “resisting arrest” if you intentionally conceal your presence on my property, your identity as an officer and, simultaneously, do not inform me that I have been accused of crimes and I am under arrest (all the while pointing an AR-15 at my chest) – or am I legally defending myself and my property from parties unknown?
40-7-108. Resistance to officer.
(a) A law enforcement officer, after giving notice of the officer’s identity as an officer, may use or threaten to use force that is reasonably necessary to accomplish the arrest of an individual suspected of a criminal act who resists or flees from the arrest.
(b) Notwithstanding subsection (a), the officer may use deadly force to effect an arrest only if all other reasonable means of apprehension have been exhausted or are unavailable, and where feasible, the officer has given notice of the officer’s identity as an officer and given a warning that deadly force may be used unless resistance or flight ceases, and:
(1) The officer has probable cause to believe the individual to be arrested has committed a felony involving the infliction or threatened infliction of serious bodily injury; or
(2) The officer has probable cause to believe that the individual to be arrested poses a threat of serious bodily injury, either to the officer or to others unless immediately apprehended.
Officer Coon used deadly force against Mark WITHOUT giving notice of his identity as an officer, WITHOUT notifying Mark that he was under arrest, and WITHOUT giving him any warning that deadly force may be used, i.e. “Police! You’re under arrest, drop the gun/show me your hands or I”ll shoot!” In addition, ZERO “reasonable means of apprehension” had been attempted, much less “exhausted” when Mark was shot four times at point blank range while standing in his own home.
February 22, 2023 @ 9:15 pm
Thanks for stating the law and summarizing the tragedy. . Innocent until proven guilty ? No such presumption in this case. No “reasonable means of apprehension” were ever tried. No notice of identity was made. Someone at MNPD gave the order for this macho sneak procedure. No invitation to surrender by text, email, phone or bullhorn was made ? Seriously ?
Wrong twelve ways. Our friend had one bad day. His last.
February 21, 2023 @ 3:50 pm
Stay on this story like a bulldog, Kyle. MNPD is going to get away with murder if you don’t.
February 23, 2023 @ 10:47 am
Does anyone know what happened to the petition on change.org?
February 23, 2023 @ 10:54 am
Apparently change.org took it down, possibly due to bot activity. I’m in touch with the authors. Hopefully it gets restored soon. If not, perhaps we have another wrinkle to the story.
February 23, 2023 @ 3:02 pm
BOT activity for sure…They say it will be back up soon.
Thanks for noticing
February 23, 2023 @ 3:03 pm
change.org bots say they will contact me about their mistake.
Thanks for noticing.
February 23, 2023 @ 3:12 pm
up 8 minutes later !
https://www.change.org/p/accountability-for-mark-capps
February 23, 2023 @ 3:52 pm
Hooray!!!
February 23, 2023 @ 7:54 pm
I signed the petition. Please consider the facts, video evidence, and sincerely consider signing as well. Mark has/had no legal obligation or duty to prove his innocence. It is incumbent upon the State, and it’s agents, to prove Mark’s “guilt” beyond a reasonable doubt. I, as many people, have “reasonable doubts”. Mark was not Osama Bin Ladin. Officer Coon is not a ninja or Navy Seal. Please behave as such. Respect our Constitutionally enumerated Rights, which, ALL agents of the State, have sworn an oath to uphold and protect. Act as a Peace Officer, not a Military Commando. Treat your fellow Americans, flawed and imperfect as they may be, not as Terrorists or “Enemy Combatants”, but as your flock. Be a good Shepard. I beg you.
February 26, 2023 @ 11:08 am
Tennessee Legal Code and further analysis,
39-11-611. Self-defense.
As used in this section, unless the context otherwise requires:
(3) “Curtilage” means the area surrounding a dwelling that is necessary, convenient and habitually used for family purposes and for those activities associated with the sanctity of a person’s home;
(4) “Deadly force” means the use of force intended or likely to cause death or serious bodily injury;
(5) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, that has a roof over it, including a tent, and is designed for or capable of use by people;
(8) “Residence” means a dwelling in which a person resides, either temporarily or permanently, or is visiting as an invited guest, or any dwelling, building or other appurtenance within the curtilage of the residence;
Mark’s attached, immobile, permanent, front porch – that has a roof over it and is designed for use by people – is, at the very least, a “Dwelling”, according to Tennessee Law.
Mark’s home is a Dwelling in which he, and other people, permanently reside. Thus, Mark’s home is his “Residence”, according to Tennessee Law.
Further, Mark’s front porch, his Dwelling, is within the Curtilage of his “Residence”. That is, his front porch is surrounded by the area “that is necessary, convenient and habitually used for family purposes and for those activities associated with the sanctity of a person’s home”. Therefore, his front porch, as much as his front door, are within and a part of Mark’s “Residence”, according to Tennessee Law. This point is crucial. Mark’s front porch is not just on his property or a part of his property, it legally is his Residence. It IS his home; as much as any other part of his home is his home.
Tennessee Law Enforcement officially stated, in the video disseminated to the media which included portions of Officer Coon’s body cam footage, “As three SWAT members attempted to begin work outside the home, without Capps seeing them, he opened the front door, with pistol in hand.” At least two of the SWAT officers, as clearly seen in the video released by Metro Police, were on the front porch when Mark opened his door. From a legal standpoint, these men were already within Mark’s home at this point, contrary to the assertion that they were “outside” of his home. Law Enforcement’s sole function is to know what the law says, what it actually means, and to apply it. Curtilage is not some unknown concept to them – to the contrary, they are fully aware of it and how it massively complicates this situation. Metro Police Spokesman Don Aaron, in his initial statement to the press at the scene, admitted, “Members of the SWAT team were conducting a covert operation outside the residence… As the SWAT members were on the front porch area of the home he actually came to the door; opened the door with gun in hand.” By their own admission, SWAT officers were “conducting a covert operation… on the front porch area of the home.” As we have already established, Mark’s front porch is legally within his Residence. Thus, SWAT officers were conducting a covert operation within his residence, not “outside the residence” as officially claimed by the Metro Police Department. Further, one officer was physically manipulating Mark’s door – actively placing explosive charges on it. This door is also legally within Mark’s Residence, not “outside” of it. In the eyes of Tennessee State Legal Code, and the Definitions contained therein, this is akin to the Police Department claiming that the SWAT officers were conducting a covert operation in Mark’s bedroom when he opened his bedroom door, gun in hand – but his bedroom and bedroom door were “outside the residence” and “outside the home”. Tennessee Law clearly and explicitly contradict the official Police narrative in respect to the actual legal boundaries of this particular homeowner’s Residence.
Agents of the Nashville Metropolitan Police Department were already within Mark’s legal Residence and, by their own admission, unannounced and actively attempting to keep their presence hidden from him, when he opened his door. He would be dead or dying literally two seconds later. Police Spokesman Don Aaron never made any claim or assertion that Mark ever pointed, or attempted to point, his gun at those Government Agents when they killed him. However, in his official statement to the press, when asked if Mark fired his weapon at the officers, or threatened them in any way, Aaron stated, “I do not believe so at this moment… threatening them, yes. He came to the (his) door, opened the (his) door, armed with a (his) gun, ah, and they were dealing with him there, attempting to get him to drop the gun, ah, so yes, he was threatening them. They posed a… they believed that he was posing an imminent danger to them, an imminent threat to them, when one of the officers fired.” Immediately after this statement, someone in attendance asked Spokesman Aaron “Was the suspect pointing the gun at the officers…?” Aaron then asserted, “We’ll see that in the body camera footage that’s going to be released this evening.” Judging solely by the content of the single body cam footage subsequently released to the public, the answer to this question obviously is no. The footage does not show Mark point a weapon at the officers. Moreover, it does not, at least even remotely clearly or obviously, show Mark holding a gun at all. The body camera does, however, very clearly depict Officer Kendall Coon, who was within Mark’s legal Residence without announcing his presence or identifying himself, continuously pointing the barrel of his Colt M4 rifle at Mark’s door, and then immediately at Mark himself the instant he opened it.
February 26, 2023 @ 3:39 pm
Thank you for analyzing this further, Coat.
February 26, 2023 @ 11:32 am
Tennessee Legal Code, Further analysis
39-11-611. Self-defense.
(b)
(1) Notwithstanding § 39-17-1322, a person who is not engaged in conduct that would constitute a felony or Class A misdemeanor and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other’s use or attempted use of unlawful force.
(2) Notwithstanding § 39-17-1322, a person who is not engaged in conduct that would constitute a felony or Class A misdemeanor and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent danger of death, serious bodily injury, or grave sexual abuse;
(B) The danger creating the belief of imminent death, serious bodily injury, or grave sexual abuse is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
(d) The presumption established in subsection (c) shall not apply, if:
(4) The person against whom force is used is a law enforcement officer, as defined in § 39-11-106, who enters or attempts to enter a dwelling, business, residence, or vehicle in the performance of the officer’s official duties, and the officer identified the officer in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
Mark was in his own home, which is by definition a place he had a right to be. Holding a gun that is legally owned in the confines of your own residence is not a felony, nor a Class A misdemeanor. Even the act of opening his front door holding his gun is not, in and of itself, a crime or violation in any way, much less felonious activity or behavior. Given this, Tennessee Law also clearly states that Mark had no duty to retreat before threatening the use of force that is intended to, or likely to cause, death or serious bodily injury if, and only if three conditions were met.
Condition One: Immediately upon opening his front door, Mark was confronted with a rifle pointed directly at him. It is entirely reasonable for him to believe this placed him in imminent danger of death.
Condition Two: The rifle leveled directly at Mark’s person was very real, and very loaded.
Condition Three: Looking down the barrel of a semi automatic rifle, with a thirty round magazine, while standing inside of your own house would certainly constitute “reasonable grounds” for “the belief of danger”.
However, Section 39-11-611, Subsection (4) completely negates the justifications for self-defense outlined in Subsection (2) if “The person against whom force is used is a law enforcement officer who enters..a residence..in the performance of the officer’s official duties…”. However, and this is where the rubber really meets the road regarding Mark’s situation, this does not confer carte blanche authority to police; certain conditions must be met. Subsection (2) continues, “the officer identified the officer in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.”
It is an indisputable fact, derived from the body cam footage, that neither Officer Coon, nor the other two SWAT officers present, verbally identified themselves as “police” or “law enforcement officers” before Mark was fatally shot. It is not an indisputable fact that Mark knew, or “reasonably should have known” that they were law enforcement. Especially considering the fact that these men were emphatically neither “entering or attempting to enter” Mark’s legal Residence – they were already within the confines of his legal Residence when he physically discovered them. In his legal Residence “covertly”, secretly, unannounced, and unidentified. Is it possible that Mark saw them on security cameras? If he did, in fact, have cameras, it is possible. Is it possible that Mark saw them through his front door peephole before he opened the door? It is definitely a possibility. It is also equally possible that he did not see them on camera, nor look through the peephole prior to opening his door; especially in complete absence of any proof or evidence to the contrary. Mark is legally required to be presumed innocent of any and all charges or accusations against him until, and only after, he is found guilty, beyond a reasonable doubt, in a court of law. Further still, as stated in 39-11-201 (c) “A person charged with an offense has no burden to prove innocence.” If Mark was legally presumed innocent of the charges levied against him that caused the police to be within his legal Residence when he was killed, he is equally entitled to be presumed innocent of making “movements (which) posed an immediate, imminent threat”, according to, solely, the officer who killed him. Officer Coon’s body cam footage shows no obvious “movements” from Mark that would corroborate, much less prove, his claim. Being that Officer Coon is a government employee, an Agent of the State, the onerous is on the State itself to sufficiently and publicly demonstrate the validity of any and all such claims made against any U.S. citizen, especially those killed by, and in the name of, the Authority thereof.
February 27, 2023 @ 4:44 pm
You can copy and paste all the legal code you want, but if the investigators believe the claim from Capps’ wife and stepdaughter and her boyfriend that Capps pulled a gun inside the house and menaced and threatened them with it; and if the investigators conclude that when the police came to the house to arrest Capps, he emerged holding a gun and that he raised it, then the cop who shot him will not be charged.
Mind you, personally, I believe that Officer Coon approached the situation in a ham-handed, cement-headed manner, practically designed to provoke the mayhem that ensued, but I’m invoking a dose of realism, here.
February 27, 2023 @ 6:27 pm
“… practically designed to provoke the mayhem that ensued…”
Exactly. Another avenue that needs to be throughly explored, especially given the fact that another Tennessee police officer, who lives in the same area and may be aquatinted with, or even good friends with, Officer Coon was also at the scene of the alleged crime. Not just there, but a “victim”. If Mark threatened to kill a cop with a gun, and threatened to kill any other cops who came to his home, it is not beyond the realm of possibility that someone or someones wanted a little pay back… Especially suspicious because the presence of a third person at the “crime” scene, a Tennessee police officer none the less, was completely omitted by authorities, initially. I appreciate your insight. Thank you for reading my post and responding.
February 27, 2023 @ 3:24 pm
Thank you for keeping this alive. If you need funding please bring it up.
February 27, 2023 @ 7:00 pm
No actual attempt to arrest Mark was made or even attempted until AFTER he opened his door. The opening of his door and the “confrontation” that followed, was totally and completely unsolicited by the officers who were already on his property, legally within his residence, and actively attempting to conceal their presence from him. Some media outlets reported Mark “answered” his door. This is completely false. The police, obviously, felt like it was more important to place explosives on Mark’s door than to notify him that he was under arrest. The police, obviously, felt like it was a better idea to attempt to sneak up to Mark’s front door in broad daylight, knowing full well from his wife and stepdaughter, that he had cameras and was expecting them, than to notify him of their identity and authority as police officers as soon as, if not before, they stepped one foot onto his property. Apparently, the only operating contingency plan hatched by SWAT, if discovered by Mark, was to yell somewhat unintelligibly through his storm door once, and then destroy him.
March 1, 2023 @ 3:02 pm
Coat,
I just read through all of your amazing insight into this incident. It is so very spot-on for everything that those of us close to the situation have said. There is a group of us who are trying to keep this conversation going and keep this in the spotlight until we get answers. I personally think that the fact that TBI had an officer ON SCENE, who was allegedly one of the victims (and refused to give a statement to the police….why?)muddies the water here. How can they be give an impartial assessment of the situation? Maybe the Justice Dept. needs to be the one investigating this whole thing. There are so many unanswered questions but what every one of us who care about Mark knows with reasonable certainty, the situation was handled all wrong. ALL WRONG. It did not have to end like this. They did not have the right to be judge-jury-executioner. Thanks to you and Trigger, we will keep this discussion alive and try to get answers and justice for Mark. Feel free to email me if you would like. There is so much more to this story than what is public. Trigger has my email.
March 1, 2023 @ 4:51 pm
I appreciate it. I didn’t personally know Mark, but what happened to him can happen to any American – unless we challenge it. The vast majority of people murdered worldwide in the twentieth century were killed by their own government. It is known as Democide. This affects us all.
March 1, 2023 @ 8:03 pm
I completely agree. It’s not okay. The way this was bungled cannot stand. It would have been even harder for you to stomach if you would have known him. He was like a brother to me. One of the most passive/non-confrontational humans I have ever met. Did he have demons? Yes. But all of us do. He didn’t deserve what they did to him. He needed help. Not bullets to the chest. I’m trying to be patient, as we all are, but it is very hard. Thanks again for all of your input and support. It means a lot to those of us who loved him and worked with him. Our industry lost a true great man. There will never be another like him. We can’t let this happen again.
March 4, 2023 @ 12:21 pm
The affidavits of Mark’s wife and stepdaughter, sworn to under oath, clearly and plainly affirm that a Tennessee Police Officer was present to, witness of, and fellow victim of an individual committing multiple acts of Felony Aggravated Assault with a Deadly Weapon and Felony Aggravated Kidnapping with Possession and Threat of a Weapon. The affidavits also affirm that, eventually, ONLY Mark’s wife and stepdaughter were forced into the bedroom, where eventually, Mark would fall asleep. This would allow the two women to gather their pets and safely flee the residence. If the Police Officer was still present, he easily could have, and was legally required to, safely disarm and arrest Mark, or, at the very least, call for backup from fellow members of law enforcement in order to facilitate this. As we know for certain, this did not occur. A sleeping and totally vulnerable Mark would remain completely unmolested by any and all law enforcement agents or officers until hours later, where he would be shot dead almost immediately. Why? Let’s examine some Tennessee Code pertaining to the legal duties and responsibilities of the stepdaughter’s Police Officer boyfriend:
38-3-107. Neglect of duty by officer.
Any magistrate or officer, having notice of any unlawful act provided against in this chapter, who neglects or refuses to do the magistrate’s or officer’s duty in the prevention of the public offense commits a Class C misdemeanor.
38-3-108. Duty to arrest.
It is the duty of all peace officers who know, or have reason to suspect, any person of being armed with the intention of committing a riot or affray, or of assaulting, wounding, or killing another person, or of otherwise breaking the peace, to arrest such person immediately, and take such person before the court of general sessions.
There is no stated requirement or distinction that the peace officer be on duty under this statute. “All peace officers” would include even those who are off duty at the time. Police officers retain all police powers even when off duty. Has this individual been suspended for his, apparent, complete lack of action in this situation?
Is he being investigated? Charged? Anything?? As we know, the two women went to the local Police Precinct in order to let law enforcement know what had, allegedly, occurred at the home. Law enforcement was most certainly not alerted or called to the scene by the officer who was actually involved. Some people, claiming to be in the know, have stated that this officer actually reported to work some three and a half hours BEFORE the women were able to escape. If that is true and verifiable, then something is well beyond just “suspicious” about the entire scenario. If it didn’t completely pass the smell test initially, then subsequent revelations positively reek of official misconduct, or something much much worse…
March 6, 2023 @ 9:54 am
Coat – Exactly!! I’m assuming since the TBI is ONLY investigating the officer involved shooting part of this incident (that’s what the agent that interviewed me and others confirmed), who is investigating Noah’s part in this whole thing? Will that be the DA’s office? The community oversight board? SOMEONE needs to be addressing that part of this tragedy. I will say it again – things could have been different. None of this is okay.
March 7, 2023 @ 12:02 pm
“The affidavits of Mark’s wife and stepdaughter, sworn to under oath, clearly and plainly affirm that a Tennessee Police Officer was present to, witness of, and fellow victim of an individual committing multiple acts of Felony Aggravated Assault with a Deadly Weapon and Felony Aggravated Kidnapping with Possession and Threat of a Weapon.”
I made this assertion in a previous post. However, upon re-reading the affidavits, I will posit an alternative interpretation of the texts in an effort to answer, or to fill, some of the major “plot holes” that the previous reading and interpretation created. Keep in mind, this is speculative to some degree, and based solely from the perspective of an individual who is entirely outside and removed from the situation, examining materials made publicly available.
The affidavits themselves do not, at least explicitly, state that Mark woke up his sleeping wife, stepdaughter, or her boyfriend at gunpoint. Nor do they make a positive claim that Mark used a gun to force them into the living room. Yet, Police Spokesman Don Aaron unambiguously asserts this as though it is an unassailable fact on two separate occasions.
First, at the press conference at the scene Mr. Aaron stated, “The subject’s wife and his stepdaughter were awakened by him at three o’clock this morning at gunpoint.” Keep in mind, the stepdaughter’s boyfriend was also in the home and awakened by Mark, but Mr. Aaron fails to mention this to the press…
Next, in the Critical Incident Briefing video Mr. Aaron declares, “The victims said that Capps awakened them at 3 a.m.; gathered them in the living room at gunpoint…” The text displayed onscreen concurrent to Mr. Aaron making this assertion reads, “Capps awakened them at 3:00 a.m. at gunpoint“.
However, Mrs. Capps’ actual affidavits read, “…her husband, the defendant, had woken them up at 0300 hours along with her daughter’s boyfriend and gathered everyone in the living room…”
No gun or gun pointing mentioned or alluded to yet. If Mark was already in the possession of a pistol and actively threatening with it when he initially awakened the occupants of the household, the affidavits, in and of themselves, as written, neither explicitly state this nor make this point abundantly clear.
Please note that the word “them” in this sentence of the affidavit, at least at this juncture, refers exclusively to Mrs. Capps and her daughter; the boyfriend is referenced separately from “them”. Also, note that the word “everyone” denotes, at the very least, “them” – the wife and the stepdaughter – in addition to the boyfriend, if not also including Mark as well.
If in fact, as the affidavits themselves suggest, Mark was not yet in the possession of, or at least the obvious possession of, a firearm when he awakened the two women along with the boyfriend and, subsequently, “gathered everyone” into the living room – at what point in time did he actually produce the weapon and begin to make threats?
The affidavits continue “…the victims then stated he held them at gunpoint using a Taurus Judge Revolver and refused to allow them to leave.”
“Them”. Not “everyone”. Not “them…along with her daughter’s boyfriend” as used previously in the sentence – just “them”, the two women.
Here is the real question. Was the stepdaughter’s boyfriend even present at that point, or had he already left the premises??
The boyfriend is never technically identified as a “victim” in any of the affidavits – ONLY Mark’s wife and stepdaughter are ever explicitly identified as such. “The victim and her daughter” and “the victim and her mother”. It necessarily follows that any mention of, or reference to, “victims” or their treatment in any of the affidavits, necessarily refer only to two individuals – Mark’s wife and Mark’s stepdaughter.
We can only conclude with any degree of certitude from the actual texts of the affidavits that, at this point, Mark is holding the two women at gunpoint, as well as refusing to allow the two women to leave. We shouldn’t be required to play guessing games concerning the location or treatment of the boyfriend if the affidavits were written in a clear, precise manner. We are looking at some level of incompetence in their construction or, possibly, deliberate obfuscation.
If we apply this interpretation of “them” and “victims” to our reading of the affidavits, it resolves some of the most obvious questions regarding the boyfriend. Especially so, given the fact that the affidavits explicitly state that ONLY the two women enter the bedroom with Mark. It would also explain why he did not contact authorities; as well as why he, potentially, reported to work as usual that morning. If he had not actually witnessed Mark engaging in criminal behavior towards the women prior to his departure, it would be logical.
However, if this actually is the case, why is none of this clearly stated in the affidavits? Why would the Metro Police Department repeatedly insist that Mark had gun in hand from the very start?
The only section of the affidavits text which may hint at the boyfriends’ presence, post explicit description of criminal behavior by Mark, is “…he would kill all of them along with their pet dogs.” If it is referring only to the two women, it would be more natural to say “both” of them instead of “all of them”. That being said, “them” is followed immediately by “their pet dogs” – obviously referencing the two women who possess the animals, not a transient boyfriend.
March 9, 2023 @ 2:35 pm
The original story told to the police and repeated to several close to the situation was that Mark had everyone in the room and held a gun to the head of Noah FIRST. That was the original story told. The fact that MNPD chose to word their affidavit the way they did is not surprising. Like I have said before – there is so much more to this story than what has been released by MNPD. Hopefully we will get answers soon. And thanks to Trigger for keeping the story alive.
March 12, 2023 @ 7:42 am
I want to make clear that I am not endorsing or promoting the veracity of any claim made against Mr. Capps in any of these affidavits. I am simply attempting to to take them at face value for purposes of examination. These legal instruments are literary in nature. The “Mark Capps” as portrayed in the text and narrative of the affidavits is not the actual human person, but a literary character constructed by a government agent. I have personally experienced, on multiple occasions, being falsely accused by agents of the state. It is not beyond the realm of possibility that Mr. Capps was, in actuality, the victim of a coordinated criminal conspiracy on some level. I sincerely hope that all available evidence concerning his case is brought to light for public scrutiny.