Many Questions Remain About the Death of Mark Capps

With so many news stories coming and going each day even within the country music realm, it can be easy to forget or move on from the story of a music engineer you probably never heard of getting gunned down by the police. Let’s face it, Mark Capps was not a household name, even among dedicated country music fans.

Nonetheless, Mark Capps was a prolific and important studio engineer with credits tracing back to 1991 for work on albums from Dolly Parton, Alabama, The [Dixie] Chicks, Brooks & Dunn, Clay Walker, Elizabeth Cook, The Mavericks, and The Isaacs just to name a few. Talk to people within the traditional country music industry, and they’ll tell you that the contributions of Mark Capps were significant.

Some may have heard of Mark’s father Jimmy Capps, who played in the Grand Ole Opry house band for years, and also portrayed the guitar-playing sheriff on the RFD-TV music show Larry’s Country Diner. Affectionately known as “The Man in Back,” Jimmy Capps is recognized by quite a few in the country music community. But he’s not exactly a household name either, nor does Jimmy’s notoriety really communicate down to his son.

Engineers play a critically-important, but decidedly behind-the-scenes role in music. And despite Mark Capps owning four Grammy Awards, earning them in the polka realm really didn’t help put his name recognition in the national consciousness either, nor did it help his pocketbook for that matter. But the death of Mark Capps by a Nashville SWAT officer on Thursday, January 5th should nonetheless be of national importance, and the public should be demanding some answers, and if necessary, accountability.

First, the accusations of how the Nashville Metro SWAT team ended up at the front door of Mark Capps are most certainly disturbing, and don’t deserve to be diminished regardless of what the eventualy outcome was. It all began when the 54-year-old allegedly went on a tirade at his home on Summit Run Place in the Hermitage portion of Nashville around 3 am that Thursday morning, 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 escape, he would kill them, and would kill the police if they were called. The two women also say Capps was drinking and taking prescription drugs at the time.

This was very unusual behavior for Mark Capps according to close friends and co-workers. Police had never been called to the house before for a domestic disturbance or anything else, and Mark Capps had no prior criminal record. As friends have pointed out since, Capps was currently not working at that time, and could have been worried about money. Perhaps more critically, Mark’s brother Jeffery Allen Capps had just passed away two days prior. A combination of things could had led to a mental health breakdown.

When Mark Capps eventually fell asleep around sunup while holding the two women captive, they escaped with their pets to the Hermitage police precinct where they explained to authorities what happened. After giving sworn depositions, four total warrants were issued for Mark Capps with two counts of aggravated assault and kidnapping respectively, and a request for a protection order was also processed.

Since the wife and stepdaughter claimed they had been held at gunpoint, had their lives threatened, and told officers that other guns were also present in the house, Nashville Metro police chose to deploy the SWAT team to serve the warrants and arrest Mark Capps. According to police spokesman Don Aaron in a press conference later in the day, due to concern that Capps may barricade himself in the home if he was confronted, they decided to conduct what they characterized as a “covert operation” approaching the house. This means that the police did not officially announce their presence in the area.

“As the SWAT members were on the front porch area of the home, [Mark Capps] actually came to the door, opened the door with gun in hand,” Don Aaron explains. “At that point during that altercation or confrontation with the SWAT members, he was fatally shot.”

Police also said that they believe Mark Capps may have been monitoring their movements through the house’s video surveillance system. On the day of the incident, police released body cam video (not embeddable), where a SWAT officer brandishing an AR-style rifle can be seen pointing it at the front door of the residence, and shouting through a storm door “Show me your hands!” before firing three or four shots.

SWAT officers then enter the residence and continue to shout “Show me your hands!” after Capps retreated into the house. The video also shows a picture of the pistol Capps was allegedly carrying tucked partially under a rug and what appears to be a parcel package under a table. As police have confirmed, the gun of Mark Capps was never fired.

As is common with many of these police-related shootings, when the news broke about the death of Mark Capps at the hands of police, people retreated to their respective ideological corners, with some putting paramount importance on the right of police officers to protect themselves. But the big question that many friends and family members of Mark Capps are asking is, “Did he have to die?”

The first set questions is:

1) Did the police try to contact Mark Capps via phone before sending SWAT to the neighborhood to determine his state of mind and if he would be aggressive with anyone approaching or entering the house to serve a warrant, or if he would be willing to turn himself in?

2) If no communication was possible, why did the police not attempt to set up a line of communication with the house, either by delivering a cell phone or setting up a land line, or even using a bull horn?

3) Did Nashville Metro involve mental health professionals or crisis negotiators? Did police reach out to a family member, a close friend, or someone else who perhaps could have spoken to Mark Capps to help de-escalate the situation?

4) Why was the SWAT team seen as the first option to apprehend an individual with no prior criminal record, and when there was only one individual to apprehend, and no active hostages involved?

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Then there is the concern of how SWAT officers ended up on the front porch of the house of Mark Capps. According to Don Aaron of Metro Nashville, when the officers approached the front door, they were conducting a “covert operation.” This means they had not announced their presence. This is confirmed via the body cam footage.

As Don Aaron said later in the critical incident briefing as part of the release of the body cam video, “As three SWAT members attempted to begin work outside the home without Capps seeing them, he (Capps) opened the door with pistol in hand.”

But watching the body camera footage, you can clearly see the three officers walk briskly and directly toward the front door of the home with rifles outstretched, and before Capps opens the front door, appear to be attempting to place an explosive or diversionary device on the front porch, or on the front door.

The idea that three fully armed and equipped SWAT officers all standing on the front porch of a suburban house in the broad daylight while installing an explosive device would be able to be there “without Capps seeing them” in the words of spokesman Don Aaron may have been the fatal miscalculation in how the situation was handled. Even without monitoring surveillance cameras on the house, most anyone would notice three armed men rushing up and standing on their front porch, especially if they were concerned that police may be coming.

The three officers standing on the front porch of Mark Capps did not announce themselves as police officers. They did not try to serve Capps the arrest warrants. They did not ask him to surrender. They did not tell him why they were there.

Once Mark Capps opened the door, another set of questions is posed about the officer’s actions.

1) Once Mark Capps made his presence known at the front door, why did the SWAT Officers not announce themselves as police?

2) Why did the SWAT officer give Mark Capps less than a second to obey the “Show me your hands!” command before opening fire?

3) Why did the SWAT officer fire three or four times instead of once or twice?

4) Did Mark Capps ever point or raise the gun toward the officers? In the body cam footage, it’s not visible if Capps even had the gun in his possession, though officers say he did. Spokesman Don Aaron says that Capps made “movements” that made the firing officer believe he was under “immediate, imminent threat,” but did not say Capps pointed the gun at him. What were those movements?

5) If Mark Capps was fatally shot while possessing the gun, how did the gun end up tucked under a rug and a package under a table, with no visible blood on either the gun or the surrounding items?

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When it comes to the arrest of individuals and the serving of warrants, Tennessee law states:

40-7-106. Notice of authority and grounds for arrest — Telephone call.
(a) 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.

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.

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.

Metro Nashville Police have not indicated that any phone call was placed to Mark Capps. Officers did not inform Mark Capps of their authority, or the cause for his arrest when they entered his porch, and he was not in the actual commission of the crime at the time. The officers never gave notice of their identity before using deadly force, did not give warning that deadly force may be used, and all other means of reasonable apprehension had not been exhausted at the time of the shooting.

Another issue is that we only have one side of the story, both with what initially happened in the home with the alleged kidnapping and threats to the wife and stepdaughter, along with what Mark Capps was seeing and sensing as the SWAT officers approached the front door. As cliché as it sounds, there are two sides to every story, and Mark Capps is not around to tell his. This is another reason why the preservation of life should have been an imperative in this situation. Everyone is innocent until proven guilty, and the allegations against Mark Capps were just that—allegations, which also happened to be entirely out of character for Mark according to friends.

This is not to say that there is any reason to believe that the allegations of the initial kidnapping and threats perpetrated by Mark Capps are false. But we can’t assume that they are true. And even if they were, nobody was harmed in the initial incident. Mark Capps would not be facing the death penalty if he was apprehended.

Some have taken to giving more colloquial explanations of how to absolve or explain what happened. A popular one has been, “Fu-k around and find out” in defense of the officers. But that’s not a law or a statute. If Mark Capps did have a gun in his hand when he opened the front door, that would most certainly be grounds for concern, and possibly, lethal action by the officers. But if the concern is for the safety of the officers, why were they on the front porch of the house of Mark Capps in the first place, especially without announcing their presence? Whoever made the decision to send the three SWAT officers to the front porch were putting those officers in harm’s way.

The three officers were not expecting to confront Mark Capps in that moment. When Capps opened the front door, it startled the officers, just as Capps was likely startled by three heavily armed men placing an explosive device on his front door. It is understandable that when Mark Capps suddenly opened the front door with a pistol in his hand (allegedly), that the officers may be startled, and fire on him. But the fatal flaw was that those officers were put in that position in the first place. Setting up a perimeter, opening a line of communication with Mark Capps in the house, and getting him to surrender peacefully would have been a much better option.

Another theory floated is that this was a classic case of suicide by cop, meaning that Mark Capps wanted to be killed. But then why did Mark Capps retreat back into the home when the officer opened fire? Why did the gun of Mark Capps end up in the manner that it did, almost like a feeble attempt to be hidden?

As with all officer-involved shootings in Nashville, the Tennessee Bureau of Investigation will handle the investigation henceforth. “In the coming days, the TBI, and the District Attorneys Office will continue to investigate and analyze this incident,” Metro Nashville’s Don Aaron said on the day of the shooting.

But unlike other officer involved shootings, the death of Mark Capps did not make the Nightly News. His ties to the country music community did not make the story any more remarkable for many in the public. Similar to the story of country artist and songwriter Randy Howard who was killed by bounty hunters in 2015 serving a bench warrant for a crime he was going to be exonerated of, the Tennessee Bureau of Investigation was put in charge of the case, but no charges were ever filed, and no conclusions were ever made public.

In the case of Mark Capps, the consequences were too grave for it to be yet another case that gets swept under the rug. Mark Capps could very well have been in the wrong. But all the evidence must come forth, a thorough investigation must be done with the findings made public, and efforts undertaken to make sure individuals accused of crimes are allowed to face their charges and any penalties in a court of law as opposed to being needlessly gunned down in their home.

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