Buffalo loses appeal in civil rights case regarding police department’s claim of qualified immunity

BUFFALO, N.Y. (WIVB) – The City of Buffalo has delayed a possible trial for two years by appealing to the 2nd Circuit to reintroduce several city police officers’ qualified immunity for striking a man with a cop car and roughing up his son.

But the 2nd Circuit last week denied the appeals in the civil rights cases filed by James Kistner and his son Earl. The circuit judges stated it did not have the jurisdiction for either case, because it is the jury’s role to decide matters of fact in dispute.

And now the city will delay the trial longer, taking what a local attorney called an “incredibly rare” step of appealing the 2nd Circuit’s decision. In fact, the city took its appeal a step farther by asking the entire circuit — more than two-dozen judges — to hear its arguments.

“This is misconduct by police officers that is captured on film,” said Anthony Rupp, the Kistners’ attorney. “And they’re trying to deflect and avoid, but a federal jury is going to listen to every bit of proof we have and see that video.”

James Kistner, and his son Earl, filed the civil rights cases in 2018 and 2022, respectively.

James Kistner said on New Year’s Day in 2017, he approached a police officer in her vehicle to find out why police officers were at one of his apartments on Scharmbeck Avenue. He said the cop struck him with her vehicle with his arms outward to soften the blow.

But James Kistner injured his head when he fell backwards.

Earl Kistner ran toward his dad and called an ambulance, but officers grabbed him, took his phone, and roughed him up in the middle of the street.

Both incidents were captured on the Kistners’ surveillance cameras.

Despite the video, the city claims James Kistner threw himself on the police vehicle to damage the driver’s side mirror, and that his son did not cooperate with officers’ commands. It also claims officers are entitled to qualified immunity when they make mistakes or base their actions on their perceptions of the chain of events.

“There are different interpretations of the video, and that’s why qualified immunity should apply here, because we’re talking about the officers’ perception of what happened,” David Lee, the city’s assistant corporation counsel, argued to the 2nd Circuit this past month.

Different interpretations

On Jan. 17, 2017, Buffalo police had wrapped up a call for service at one of Kistner’s apartments, when he approached Officer Lauren McDermott’s vehicle.

McDermott’s vehicle moved forward and struck Kistner in the middle of Schmarbeck Avenue.

Officers alleged Kistner threw himself at the vehicle to damage it, and they charged him with felony criminal mischief in the 3rd degree and disorderly conduct. A judge dismissed those charges.

Earl Kistner ran toward his father and called for an ambulance.

But police canceled the ambulance call, and attempted twice to get James Kistner admitted to ECMC’s mental health unit, called CPEP. The city alleges the ambulance call was canceled because police did not believe he was seriously injured, and taking him to the hospital themselves would be quicker than waiting on an ambulance.

Regardless, officers remained at the scene for nearly 30 minutes before they took James Kistner to ECMC while handcuffed in the back of a police car.

Officers grabbed Earl Kistner and shoved him in the street. They also took his cell phone. The officers and city attorney, said the use of force was acceptable because Earl Kistner did not comply with orders.

Police also ran a warrant search on him before returning his license and phone.

Earl Kistner sued for excessive force and other claims.

“Because, of course, what they didn’t know was everything they were doing was caught on surveillance video,” Rupp said. “So, they tried to explain after the fact, ‘Oh, we told him to stand on the sidewalk.’ So, he didn’t do that, so we decided to push him around and rough him up.”

Before the appeal

In 2022, federal magistrate judge Jeremiah J. McCarthy’s report and recommendation deemed the civil case “extremely disturbing” in recommending summary judgment largely in favor of James Kistner.

Then District Court Judge Lawrence Vilardo ruled that officers were not entitled to summary judgment on most of the city’s claims, even for qualified immunity, which can protect public servants from civil lawsuits. The 2nd Circuit filed its order on May 24 against the City of Buffalo.

The city appealed that decision to the 2nd Circuit, where both appeals were heard in tandem more than a year after they were filed.

This move is a long shot, considering the “compelling” video of both incidents, said Christopher Pannozzo, an attorney not involved in either case. He deemed the city’s appeal “incredibly rare.”

“But if it buys them even a few extra months, sometimes they say justice delayed is justice denied,” Pannozzo said. “This could be one of those situations where they’re buying themselves a few extra months.”

Rupp said the city’s appeal was an “ill-conceived” delay tactic.

“I think what the city would like to do is just kick this can down the road,” Rupp said. “I think they knew that this appeal had no merit, but they wanted to delay things, and they managed to delay it for two years.”

Dan Telvock is an award-winning investigative producer and reporter who has been part of the News 4 team since 2018. See more of his work here and follow him on Twitter.

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