BUFFALO, N.Y. (WIVB) – An attorney for a Buffalo man suing the city and several police officers said his client was “framed” through a “web of lies” to cover up for an officer accused of hitting his client with her car.
On Jan. 1, 2017, James Kistner exited his Schmarbeck Avenue home to ask Buffalo police officers, who were already in their cars, why they had just been at his rental apartment across the street.
But none stopped to talk to him.
Instead, Kistner alleged that one of the officers struck him with her vehicle as he approached it, throwing him to the ground with a minor head injury.
The entire scene was captured on his surveillance camera.
The officer, Lauren McDermott, didn’t render care to Kistner; she threatened to arrest him if he did not heed her order to get up off the ground. Police officers also cancelled an ambulance for Kistner, who was complaining of head pain, and tried twice to get him admitted to the psych ward at ECMC.
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Police charged Kistner with disorderly conduct and criminal mischief, a felony, for alleged damage to the vehicle’s side mirror, but a city court judge eventually dismissed the charges.
Police officers involved in the arrest testified at their depositions that Kistner threw himself at the police vehicle.
Now, a Jan. 11 report and recommendation by federal magistrate judge Jeremiah J. McCarthy further tests the credibility of the officers’ testimony and deems the civil case “extremely disturbing.”
Kistner’s lawsuit alleges that officers McDermott, Jenny Velez, Karl Schultz, and Kyle Moriarty and others are liable for false arrest, false imprisonment and malicious prosecution and McCarthy recommended to allow those arguments to move forward.
In addition, McCarthy recommended that claims to hold the city financially accountable can move ahead, a huge early victory for Kistner.
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News 4 Investigates first reported about this case in late 2019, which resulted in the Buffalo Police Department launching an internal affairs investigation.
Then-Police Commissioner Byron Lockwood ruled that there was not sufficient evidence to find any of the officers had done anything wrong.
McCarthy, however, found a lot wrong with Lockwood’s review of the internal affairs case and the police department’s version of events.
“It’s disturbing and it’s criminal what these officers did to Mr. Kistner,” said Anthony Rupp, Kistner’s attorney.
“We always thought that the video told the story,” Rupp said, “and ultimately it did.”
Police officers’ testimony challenged
The city argued that the officers are entitled to qualified immunity, a controversial legal principle that gives law enforcement officers immunity from civil lawsuits when performing their official duties.
McCarthy disagreed.
First, McCarthy wrote that the surveillance video “provides objective evidence of what occurred.”
“Because the impact occurred on the opposite side of [the police officer’s] vehicle from the surveillance camera, the video does not show the precise point of impact or whether the vehicle was damaged,” McCarthy wrote. “However, what can be seen on the video conclusively disproves the officers’ testimony that McDermott’s patrol vehicle was stopped at the time of impact.”
McCarthy also said that the video “conclusively disproves” the officers’ testimony that Kistner threw himself at the police vehicle.
City attorneys argued that the video does not confirm or deny that the vehicle’s mirror got damaged, but the police officers’ recollection should be enough.
Velez testified that the mirror was “partially detached from the car” and that the driver’s side window “made a noise and it like wiggled and hesitated to go up and down.”
Rupp, Kistner’s attorney, said the city had no record that the vehicle had been repaired.
“Common sense, reason and logic dictate that if damage of this type had occurred, it would have to have been repaired, and there would be records of the repair,” McCarthy noted.
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Previous coverage of this story
December 2019: Buffalo man sues police officers after being hit by cruiser on New Year’s Day 2017February 2020: Buffalo Police Internal Affairs To Probe New Year’s Day 2017 IncidentJuly 2020: Court depositions provide Buffalo police officers’ side in civil caseAugust 2020: Son critical of how Buffalo Police handled his father’s scream for helpFebruary 2021: Calls for stronger Buffalo police oversight by residents, not cops, get louderMay 2021: What do you see on this security footage? Buffalo Police top brass were deposed and here’s what they said
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Even Lockwood testified that there should be a record of repair for the vehicle’s mirror, and he agreed that if someone were to be charged with a felony for the damage, then the police officers would have an obligation to prove that the damage exceeded $250.
“However, the only repair record shows that on January 5, 2017 (four days after the incident), the vehicle’s cooling system was serviced,” McCarthy said, adding that Lockwood testified that, indeed, the police department did not have the proof necessary to charge Kistner with a felony.
While the city attempted to dismiss Kistner’s claims as “bizarre,” McCarthy said “what is more bizarre is the officers’ explanation for what occurred, in light of the surveillance video and defendants’ admission that McDermott’s patrol vehicle was not repaired.”
Citing part of a prior court decision, McCarthy said that the officers’ testimony that Kistner intentionally damaged that vehicle, “which was largely unsubstantiated by any other direct evidence – was so replete with … improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit it.”
“While admitting that the absence of records to substantiate the damage to McDermott’s vehicle ‘would raise concerns,’ Lockwood did not bother to explore that issue,” McCarthy said.
McCarthy recommended that the police officers not be entitled to qualified immunity and that Kistner be allowed to move forward with false arrest and false imprisonment claims.
“But you know the full machinations of five police officers getting together in the street and concocting a web of lies to frame – and that’s what they did, they framed my client for a felony – all to cover for the negligent driving of one of the officers driving a police vehicle,” Rupp said.
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Former Police Commissioner Byron Lockwood said in a 2020 deposition that it was “hard to tell” whether Kister threw himself into the police vehicle.
Perhaps the biggest win for Kistner is McCarthy’s recommendation that claims to hold the city financially accountable should be allowed to move forward.
The city asked the judge to dismiss the claim of municipal liability because the record lacks evidence that Lockwood or any other superiors knew of and failed to rectify any unconstitutional conduct by the police officers.
“However, the record is replete with such evidence,” McCarthy said.
In fact, McCarthy pointed out that although a Buffalo police lieutenant assured Kistner that Lockwood would conduct a “thorough review “ of this case through the internal affairs process, Lockwood’s review “was anything but” thorough.
For example, Lockwood testified that Kistner’s March 2017 Notice of Claim should have triggered an internal affairs investigation, but the police department did not commence one until December 19, 2019, after News 4 Investigates televised the first of several reports on this case.
Lockwood admitted that this delay “would be a concern,” McCarthy said.
Lockwood also acknowledged that McDermott’s vehicle “made contact” with Kistner while it was moving forward, which also “would absolutely then be a police vehicle involved accident that would trigger a radio call to dispatch, a lieutenant, the Accident Investigations Unit, and [Internal Affairs] all going to the scene.”
“He admitted that this did not occur,” McCarthy said.
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And when Rupp asked Lockwood during his deposition what corrective actions he imposed against the officers once he learned of these policy violations, he replied: “None.”
Lockwood also testified that Kistner should have been provided medical aid, and that it was not appropriate to keep him inside a police car for almost 30 minutes while the police officers discussed how they would handle the situation, and he had no idea why officers canceled the ambulance.
McCarthy also pointed out how Lockwood initially testified that it is his job to ask pointed questions during internal affairs investigations, but he later backtracked, stating that “[i]t’s not my job to question. It’s internal affairs’ job to question them on those incidents.”
“Notwithstanding his review of the surveillance video showing that the incident appeared to be an accident, coupled with the absence of any repair records, Lockwood did not press his officers for an explanation as to why they charged Kistner with a crime,” McCarthy said. “His failure to do so justifies a reasonable inference that he ratified their actions in a manner sufficient to impose” financial accountability upon the City of Buffalo.
Malicious prosecution claim
McCarthy originally recommended that Kistner’s claim for malicious prosecution of the criminal mischief charge be dismissed because the state court judge did not affirmatively indicate Kistner’s innocence.
But McCarthy reversed his recommendation after reviewing an April 4 Supreme Court decision in Thompson v. Clark, that a plaintiff only must show that the criminal prosecution ended without a conviction.
Therefore, McCarthy recommended that Kistner be allowed to move forward with the malicious prosecution claims against McDermott and Schultz, and possibly against Lockwood and other superiors by failing to remedy a wrong and by gross negligence in managing subordinates who caused the deprivation.
The judge did recommend dismissing certain claims against the city and some of the officers, including First Amendment retaliation and false arrest and malicious prosecution on the disorderly conduct charge.
Kistner’s attorneys have until May 16 to file any objections to McCarthy’s report and recommendations. U.S. District Court Judge Lawrence J. Vilardo will make the final decision on the report.
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.
Luke Moretti is an award-winning investigative reporter who has been part of the News 4 team since 2002. See more of his work here.
