BUFFALO, N.Y. (WIVB) — A Buffalo man’s federal civil rights lawsuit that alleges a Buffalo police officer struck him with her patrol vehicle and concocted a plan with other officers to falsely arrest him by claiming he purposely threw himself at the car, is likely headed to a jury trial.

U.S. District Judge Lawrence J. Vilardo rejected some of the recommendations offered earlier this year by a magistrate judge, who said certain claims made by James Kistner warranted summary judgement, which means there were not any factual issues that needed to be sorted out at trial.

Notably, Vilardo disagreed with the magistrate’s argument that Kistner’s home surveillance video of his New Year’s Day 2017 encounter with police conclusively disproved officers’ testimony that he purposely threw himself at the patrol vehicle and damaged a side mirror.

“As he approaches the vehicle, Kistner raises his arm in front of his body, but the angle of the video makes it difficult to tell why he does that,” Vilardo wrote in his Nov. 8 order and decision. “He may be doing that to strike the mirror as defendants allege. He may be doing it for some other reason. And so there is a question of fact about whether Kistner’s actions caused or contributed to the collision and therefore whether Kistner was guilty of criminal mischief or whether the defendants at least reasonably believed that he was.”

At the same time, Vilardo dismissed two claims Kistner made against the past two police commissioners and all state claims against the defendants for assault, defamation, official misconduct, and four others.

Anthony Rupp, Kistner’s attorney, said that while he is disappointed that the recommendation for summary judgement on some of his client’s claims was denied, he believes Vilardo’s decision still benefits his client.

Specifically, Vilardo reinstated Kistner’s Monell liability claims against the City of Buffalo, which means the city can be held liable for the alleged police misconduct even if a jury determines the officers are entitled to qualified immunity.

Rupp said Monell claims are rare in civil rights cases that involve a single incident and typically require a pattern of a government employer enacting unconstitutional policies that result in officer misconduct.

Indeed, Vilardo ruled that the circumstances in this case “show a series of distinct failures arising from the ‘single incident’.”

For example, Vilardo mentioned the following failures:

• The two-and-a-half-year delay between Kistner’s March 2017 Notice of Claim and the commencement of an Internal Affairs investigation by the police department;
• Not disciplining any of the five on-scene police officers who disregarded multiple policies; and
• Not investigating the lack of any repair documentation for the patrol car’s mirror that officers accused Kistner of damaging.

“Although it is a close call, that series of events is sufficient to support an inference that [former Police Commissioner Byron Lockwood] ratified the officers’ actions and that the City was deliberately indifferent in supervising and discipling BPD officers or had any informal policy of not disciplining its officers,” Vilardo ruled.

News 4 Investigates first reported about this case in late 2019, which resulted in the Buffalo Police Department launching an internal affairs investigation, which concluded that there was insufficient evidence to prove the officers did anything wrong.

Kistner’s legal team Tuesday filed a motion for reconsideration that in part highlighted the testimony of one of their experts, who concluded that there lacked any physical evidence to support the officers’ testimony that Kistner threw himself at the patrol car.

“We’re very eager to try this case,” Rupp said. “Mr. Kistner has been waiting a long time.”

Buffalo Corporation Counsel did not respond to an inquiry from News 4 Investigates.

Details of the encounter

Kistner’s lawsuit states that he approached a police vehicle in the street to find out why officers were at one of his rentals on Schmarbeck Avenue in Buffalo.

The surveillance video shows the patrol car moving forward as Kistner approached it. Kistner extends out his arms and falls backwards after he and the patrol car make contact.  

The lawsuit accused the officers of cancelling calls for an ambulance for Kistner, who complained of head pain, and instead handcuffing him in the back of a patrol vehicle for almost a half-hour. Police charged Kistner with felony criminal mischief third degree and disorderly conduct. Officers also tried twice to admit him to the emergency psychiatric facility at ECMC.

Those charges were eventually dismissed.

Both Rupp and U.S. Magistrate Judge Jeremiah J. McCarthy believed the video conclusively disproved the officers’ testimony that Kistner had purposely thrown himself at the patrol car.

McCarthy recommended summary judgment against four officers on Kistner’s claims of false arrest and false imprisonment relating to his criminal mischief charge and against two officers for the malicious prosecution charge.

“In this case, the surveillance video, taken from a camera located at [Kistner’s residence] provides objective evidence of what occurred,” McCarthy wrote in his report and recommendation.

“Although defendants dismiss Kistner’s claims as ‘bizarre,’ what is more bizarre is the officers’ explanation for what occurred, in light of the surveillance video and defendants’ admission that McDermitt’s patrol vehicle was not repaired.”

Officers’ perception vs what the video shows

Rupp said Vilardo’s decision points out that it doesn’t matter what the surveillance video shows. Rather, it is the perception of the police officers in the heat of the moment that he has to consider.

If a jury were to believe the officers’ testimony that they thought Kistner purposely threw himself at the patrol car and damaged the mirror, thereby giving them the probable cause to arrest him, the qualified immunity defense would kick in.

As a result, Rupp said he will challenge the officers’ perception in front of a jury and prove “that the officers acted in dereliction of duty that day and deliberately in violation of my client’s civil rights” and show how the city’s explanation of what happened that day is “preposterous.”  

“If you think about it, the whole premise of the city’s argument is that James Kistner somehow went absolutely berserk that morning at the precise moment he was about to be struck by [the police officer’s] SUV, he lost his mind temporarily and threw himself at the vehicle and cause his own accident,” Rupp said. “And then regained his sanity and was able to live his life without needing to be incarcerated or sent to CPEP at ECMC.”