Court depositions provide Buffalo police officers’ side in civil case

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A local defense attorney providing analysis described the actions of the Buffalo Police Department as “outrageous government conduct.”

James Kistner said he was struck by a Buffalo police cruiser News Year’s Day 2017 and the officers did nothing to determine if he had gotten seriously injured.

Instead, the officers tried twice to admit him into a psychiatric ward, alleging he was acting belligerent toward them.

When that didn’t work, they charged him with felony criminal mischief in the third degree for the damage to a side mirror on the cop car and disorderly conduct.

That’s the chain of events that Kistner alleges in his civil lawsuit against the City of Buffalo, the police commissioner and police officers Lauren McDermott, Jenny Velez, Karl Schultz, Kyle Moriarty and David T. Santana.

News 4 Investigates first reported this case in December 2019.

What’s new are the depositions of each of the officers involved in the incident, including hearing directly from McDermott, the driver of the cop car that day.

McDermott alleges that Kistner purposely threw himself into the vehicle.

Her testimony is either backed by the three other officers and their supervisor or they strictly avoid answering whether McDermott’s police vehicle struck him, according to their depositions.

A local defense attorney independent of the case who viewed a surveillance video of the incident and court documents described McDermott’s testimony as being “totally inconsistent with what is on the video.”

“There doesn’t seem to be anything here to demonstrate any reason why these members of the Buffalo Police Department took these actions,” said Mike Taheri, the attorney who reviewed the video and court documents to provide analysis for News 4.

Kistner told News 4 Investigates last year that he was having breakfast when he noticed police activity at his rental near his Schmarbeck Avenue home.

He exited his home to ask officers for information about their visit, but one of the cruisers quickly left the scene. Kistner then walks toward the second police cruiser, driven by McDermott, when the video shows him being struck as he reached his hands out. Kistner falls to the ground and out from the video’s view.

One of Kistner’s sons noticed the commotion and ran outside, where he tried to call 911. The video shows officers Schultz and Moriarty approach his son, who gets grabbed and shoved, the lawsuit states.

The lawsuit alleges the officers cancelled the 911 call and took Kistner to ECMC, where they tried to admit him to the psychiatric ward. Doctors declined to admit Kistner, and police charged him with a felony and misdemeanor for the incident. Those charges later got dismissed in court.

But city attorneys and the Buffalo officer saw things differently.

City attorneys responded in court records that they “deny knowledge or information sufficient to form a belief as to the authenticity of the video” and “deny any wrongful conduct by the Defendants.”

During her deposition, McDermott denies she struck Kistner.

“My assessment was that he purposely walked towards the vehicle and threw himself into it,” McDermott said in her deposition.

Her fellow officers followed in line with McDermott’s testimony.

Officer Schultz said: “I believe that he came into contact with the vehicle.”

Chad Davenport, Kistner’s second attorney, asked Officer Velez if she believes after viewing the surveillance video that Kistner intended to damage the police vehicle?

“Yes,” Velez responds.

And Officer Moriarty had a similar take: “From my perspective looking into the mirror it looked as though he threw himself on her vehicle.”

Rupp pressed McDermott on why she wrote in her police report that Kistner was acting “’hostile, argumentative and loud and yelling’”?

McDermott:    I believe he used the word conspiracy quite a bit.

Rupp: So, do you think that perhaps somebody who believes he’s been struck by an SUV and the officers all get together and come up with a story that he attacked it might believe that he’s the victim of a conspiracy?

McDermott:  I don’t know what he believes.

Rupp: He did use the word conspiracy, and where did he use that? I haven’t heard that word from you before.

McDermott:  He used it a few different times. I know at least from what I remember. His behavior at the hospital was…that’s what I remember the most was his behavior at the hospital.

Rupp:  And that was where you told me earlier, you didn’t mention conspiracy. You said that he was referring to you, I guess the other officers, as Nazis and fascists.  

McDermott:  Yes. Well, I remember him using the phrases feminazi, c****, bi*****. I think he…I mean he used a couple of other terms. Those are the ones that stand out to me.

When Rupp asked McDermott if someone would have reason to act in that manner if he believed that he had been struck by a police vehicle and the officers were conspiring against him to cover up the incident, she replied, “could be.”

Taheri, however, sees problems with the testimony.

“I watched that video several times, and the deposition that I was provided: it is totally inconsistent with what is on the video,” said Taheri.

“Frankly, this is like a law school course examination on outrageous government conduct,” Taheri added.

Rupp’s deposition of McDermott went on for hours.

McDermott testified that Kistner reached his arm out and turned his body toward her side mirror on the driver’s side door. She agreed his head appeared to go back, but because “he threw himself backwards.”

“He walked towards the car, reached his arm out, threw himself into the vehicle and moved backwards?” Rupp asked

“He reached his arm out,” McDermott said.

“I don’t know if he touched the vehicle or not, but reached his arm out, turned his body and then threw himself backwards.”

“Do you know why Mr. Kistner is on the ground?” Rupp asks.

“Because he put himself there,” McDermott said.

Rupp asked McDermott why she pulled forward when she noticed Kistner approaching her vehicle?

“I saw him there,” she said.

“I didn’t know why someone would be approaching a moving vehicle in the middle of the road.”

When Rupp reminds her that Kistner had first tried to approach the first police cruiser that drove away, McDermott responded, “But I don’t know that he wasn’t just crossing the street.”

McDermott also said that by the time Kistner had walked toward her vehicle she had already been backing up.

“Why did you pull forward? “ Rupp asked.

“I don’t remember,” she said.

“Weren’t you worried you might hit him?” Rupp asked

“I didn’t think that someone would walk intentionally directly at a moving vehicle in the middle of the road”

“But if you saw him and he’s in the middle of the road and he’s walking toward your vehicle you could have stopped, right?” Rupp said.

“I stopped as quickly as I could,” McDermott said.

McDermott also said she could not remember when she first noticed Kistner.

But she said earlier, as Rupp pointed out in the deposition, that she spotted him when the first police cruiser drove away.

“Based on watching the video,” she said.

“But I don’t remember when I, that day, first saw him.”

Rupp asked McDermott if she said anything to Kistner while he lied on the ground.

“I believe I told him to get up,” McDermott said.

“Did you know whether he was injured?” Rupp said.

“I don’t remember,” McDermott said,

“I remember him rolling back and forth and I didn’t see any outward physical injuries.”

Rupp asked McDermott what her police training directs her to do when a cop car strikes a pedestrian?

“It would depend on the situation,” McDermott said.

“What training says to ask someone to rise after being struck by a vehicle before any assessment?” Rupp said.

“It would be a fairly normal question to ask if someone could get up,” McDermott said.

“OK, you didn’t tell me if you asked him if he could get up, but what you told me is for him to get up,” Rupp said.

“Correct,” McDermott answered.

“Based on what I could see, he didn’t appear to be injured”

McDermott later says she could not recall if anyone ever asked Kistner if he were injured.

Schultz handcuffs Kistner, who yelled to his son to call for an ambulance.

Kistner’s attorneys allege that Schultz cancelled the ambulance call.

“Does that follow police procedures,?” Rupp asked.

“If we did not deem an ambulance was necessary then we would cancel the ambulance,” McDermott said.

“Who deemed the ambulance was not necessary?” Rupp said.

“I don’t recall exactly,” she said.

“Was it you?” Rupp asked.

“I don’t recall,” she said.

Both the City of Buffalo and police department declined to comment.

McDermott ,who was a patrol officer in 2017, has since been promoted to a detective. An internal affairs investigation, which was launched the day News 4 Investigates story ran in December, is ongoing, although Kistner told News 4 that he requested by letter an internal affairs investigation before the story aired.

Taheri, the legal analyst, said it will be the readers and viewers who will ultimately decide how this case impacts the reputation of the Buffalo Police Department, which is already under public scrutiny for several controversies, including criminal charges against two officers who shoved an elderly protester and a lieutenant caught on video cussing at a woman who was filming a police encounter last month.

“I think the beauty of that question is everybody’s going to look at the testimony and say ‘I don’t see it that way’ and if they do then that’s their call,” Taheri said.

“But I think realistically the best people to make that criticism, to make that observation, are going to be the viewers that look at the video and then side by side see this officer’s testimony and say “wait a minute, that is not what I’m seeing at all’ because that officer is under oath, that’s the deposition, she’s stuck with that.

“So, I think realistically, you’ve got some deep explaining to do how you arrived at the conclusion he threw himself on the police car. Your viewers can see that themselves.”

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