James Kistner was having breakfast with his sons at his Buffalo East Side home on New Year’s Day 2017 when he noticed police at his apartment across the street.
They finished breakfast before Kistner walked outside to find out what might have caused the police presence at the apartment on Schmarbeck Avenue.
What happened to him next was caught on video obtained by News 4 Investigates and is the subject of a civil rights lawsuit in federal court against the city and several of its police officers.
Not only was Kistner struck by a police SUV and injured, but his attorney alleges officers surrounding Kistner’s son while he called 911, shoved him around and took his phone. Police cancelled the ambulance call.
The officers twice tried to get Kistner admitted in the psych ward at ECMC, claiming he attacked the police cruiser.
When that effort failed, police charged Kistner with felony criminal mischief and a disorderly conduct violation.
Anthony Rupp, Kistner’s attorney, said the officers conspired to cover up the incident to avoid discipline for hitting Kistner with a police cruiser.
“What’s disturbing to me about what happened here is how many police officers instantly doubled down on the lies that were told about my client to protect what was really just a few hundred dollars maybe of damage to the police SUV,” said Rupp.
“One look at the video and you know that Mr. Kistner did not attack the vehicle.”
All charges against Kistner were dismissed. Rupp said as far as he knows the officers were never disciplined.
Buffalo Police declined to comment for this story. In court documents, the police department denied the allegations.
“The word I use about the whole day is disgusted,” Kistner said.
“Who watches these people?”
Play by play of the incident
After Kistner had finished breakfast, the surveillance video obtained by News 4 Investigates shows Kistner walking toward one police SUV, but it drove past him.
“As I am walking up I say ‘can I speak to you?’ Kistner said.
“The policeman that was in the passenger side of this car, he starts waving his hands around screaming ‘No! We’re not talking to anybody, we are leaving now!’”
Kistner walks a few feet toward a second police cruiser that begins to back up. He gets within a foot and he throws out his arms to brace for what was about to happen: the cruiser runs into him, forcibly knocking him to the ground.
No one moves. None of the officers run to check on Kistner. More than 15 seconds pass before officers get out and walk toward Kistner, who is lying on the ground yelling at his son to call 911.
Earl, Kistner’s son, runs over, sees that his dad is on the ground with his legs pushed out between the two wheels of the left side of the SUV and then walks back to the sidewalk to call 911.
The video does not have audio but several officers stand over Kistner, who says they were telling him to get up or risk being arrested.
“I know I expressed I’m not getting up off the ground,” Kistner said.
“Next thing I know I am in handcuffs.”
Indeed, an officer picks up Kistner off the ground, they cuff him and detain him in the second police cruiser that returned to the scene. Kistner still has marks on his wrists from the way officers tightened the cuffs.
Meanwhile, his son Earl is on the sidewalk calling 911. Several of the police officers turn their attention to him.
An officer walks toward Earl on the sidewalk and forcibly pulls him back onto the street. Two male officers shove him back and forth, before one grabs his cell phone. The video shows Earl emptying out his coat pockets while being surrounded by four police officers in the middle of the street.
“First, they bounce him around like a ping-pong ball in the street and then they take his phone and say you’re not calling anybody or you’re going to jail,” Kistner said.
Officers transported Kistner to ECMC, where they chained him to a gurney, and left to speak with medical staff.
“One nurse in particular comes in and says, ‘Why are you attacking police cars?’” Kistner said.
“I said ‘I didn’t attack a police car, what are you talking about?’”
Kistner said the nurse told him that the officers claimed he jumped onto the police cruiser.
ECMC did not admit Kistner, so police brought him to central booking where he was fingerprinted, searched and photographed.
Kistner thought he would get an appearance ticket for some violation, but the officers would eventually bring him back to ECMC to try to get him admitted a second time, he said. He was charged with felony criminal mischief in the third degree for the damage to the mirror and disorderly conduct.
Buffalo Police Officer Lauren M. McDermott wrote in the complaint that Kistner showed intent to damage the police cruiser by throwing his body “into the driver’s side mirror of patrol vehicle #473, causing the mirror to become dislodged from the vehicle and also causing the driver’s side window to malfunction.”
“None of the information that they put in official reports or in their representations to ECMC Psych ward that Mr. Kistner needed psychiatric help is revealed in the video,” said Rupp, Kistner’s attorney.
“They all talk about what the story’s going to be all because they would have had to explain why the SUV had a damaged mirror or perhaps if it had been severe enough on the injury front, face a lawsuit for negligently striking Mr. Kistner and so their reaction was to lie.”
While back at ECMC, Kistner again denied to a doctor that he attacked a police car and said he has video to prove it. The doctor called a family friend of the Kistners, who confirmed that the video shows Kistner being struck by the police car.
Less than an hour later, ECMC nurses told Kistner he was free to leave.
Kistner said he filed a complaint with internal affairs but was ignored. So, he decided to sue.
“It might be that they assume, they wrongly assume that everybody on the East Side of Buffalo is some kind of criminal,” Kistner said.
Rupp said he does not know if the police officer deliberately hit his client or if it was an accident. But he believes the video shows officers concocting a fake story about the incident to avoid any discipline.
Prosecutors dismissed the charges against Kistner once they saw the video evidence.
But Kistner is fighting back by suing the City of Buffalo, the police commissioner and police officers Lauren McDermott, Jenny Velez, Karl Schultz, Kyle Moriarty and David T. Santana.
In the complaint, Rupp accuses them of “outrageous criminal conduct.”
“There was never any repercussions for any of this,” Rupp said. “The City of Buffalo, as far as we can tell, doesn’t care at all.”
“You can watch on video as they conspire to tell a false story about Mr. Kistner and it’s disturbing,” Rupp continued.
“It’s not one officer filing the false statements – it’s several. And all of them kibitzing and preparing to back up each other’s false statements.”
Disclosure: Attorney Anthony Rupp himself also is suing the Buffalo Police Department and three officers in federal court for alleged constitutional violations, including unlawful arrest, for an unrelated incident in December 2017 on Seneca Street while he was leaving a restaurant with his wife.