Son critical of how Buffalo Police handled his father’s scream for help

Investigates

Earl Kistner, the son of a man suing the city and several police officers for a New Year's Day 2017 incident, tells News 4 Investigates that he felt "scared" and "intimidated" by the way officers handled the situation.

Earl Kistner said he called for an ambulance as soon as he heard his father screaming on the street after being struck by a Buffalo police car.

But a Buffalo police officer at the scene kept cancelling the ambulance.

Meanwhile, two of the officers grabbed Earl Kistner and “roughed him up,” said Anthony Rupp, the attorney for Kistner’s father James, who is suing the city, the officers and the police department in a federal civil rights lawsuit that News 4 Investigates has reported extensively on.

James Kistner alleges in his lawsuit that instead of calling for medical assistance, the officers concocted a story that he threw himself onto the police car. The lawsuit also alleges that the officers twice tried to get him admitted to ECMC’s psych ward before falsely arresting him for a felony and misdemeanor, both of which got dismissed by the courts.

Earl Kistner, who is serving in the Air Force stationed in Italy, speaks for the first time about the chain of events of that New Year’s Day in 2017. He is critical of how Buffalo police handled the situation and told News 4 Investigates that he felt “scared” and “intimidated” by their actions.

“I don’t think it was handled the right way,” Earl Kistner said.

“It could have happened in a way that didn’t lead to what did happen. An ambulance could have been called, but instead of that they tried to discredit my father.”

The morning started off with breakfast, when Earl Kistner said he and his dad noticed police at one of their rentals across the street.

Earl Kistner said he and his dad attempted to find out why officers were at the apartment.

James Kistner approached one police car, which drove away. He then walked toward the second police car, driven by Officer Lauren McDermott.

McDermott’s vehicle pulls forward and strikes Kistner, his lawsuit states. Kistner falls backwards and hit his head on the pavement in the middle of Schmarbeck Avenue on Buffalo’s East Side.

Earl Kistner said he heard his dad screaming, so he called for an ambulance. At the same time, several officers approach him by the sidewalk.

“They asked me for ID,” Earl Kistner said.

“And I told them to wait, I was on the phone with paramedics and they said ‘no, you’re going to come here right now!’”

Earl Kistner said he was confused by the anger and approach of two of the officers, Karl Schultz and Kyle T. Moriarty.

Both officers are ranked among the top 10% for use of force complaints over a five-year period, according to data requested by News 4 Investigates through the Freedom of Information law.

Schultz, hired in August 2008, also ranked in the top 10% for citizen complaints over the same five-year period. Most of the complaints during his 12-year career in Buffalo were either not sustained or unfounded by the police department’s Internal Affairs Division.

Schultz also was involved in a 2012 shooting that paralyzed a Buffalo teenager and resulted in the city settling with the victim earlier this year for $4.5 million.

Moriarty, hired in November 2016, had two use of force complaints in 2019. One complaint is still being investigated; he was reprimanded for an April 2019 use of force complaint, according to his disciplinary card. Moriarty is also a defendant in a federal police brutality case filed earlier this year.

Rupp said the surveillance footage shows Schultz grabbing and pushing Earl Kistner, while confiscating his cell phone.

Earl Kistner said that while he was scared, he remained calm knowing that their home security cameras were capturing the encounter.

“I’m not antagonizing him. I’m just calling an ambulance,” Earl Kistner said.

“He decided he needed to control the narrative. They wanted to control what everyone who was in the narrative was doing and forge their own narrative.”

The City of Buffalo and Police Department declined to comment.

John Evans, the president of the Buffalo Police Benevolent Association, also declined to comment on this specific incident or the specific officers. The union tagged up with the firefighters’ union to file a lawsuit that seeks to halt the release of most police and firefighter disciplinary records. The unions in July earned a temporary restraining order against the city from releasing those records until the judge makes a decision.

The three officers, however, were deposed earlier this year by Kistner’s attorneys.

Schultz said in his deposition that he was just practicing officer safety when he grabbed Earl Kistner and took his phone.

“What kind of concerns did you have at this point with the individual,” asked Jill Yonkers, an attorney at Rupp’s firm.

“Just the way that he was moving around, moving about, not listening,” Schultz answered.

“So, at that point I just brought him over, we were going to do a pat down and just make sure he had nothing on him that could harm myself, himself or any of the other officers.”

Schultz admitted that he cancelled the ambulance calls that Earl Kistner had made because he thought “it would have been a lot quicker for us to get him up to ECMC and get the treatment than waiting right there for an ambulance to show up.”

But the officers were in no rush, Earl Kistner said.

He said the officers at the scene gathered together in the street and chatted for close to a half hour before taking his dad to ECMC.

“There’s no reason they should have called off an ambulance three times,” Earl Kistner said.

“I don’t know if police are trained to tell if someone is medically okay or not.”

Moriarty said in his deposition that he remembered Earl Kistner “approached officers and wanted to speak to us.”

Instead, he said, they patted him down and did an ID check on him because “it’s common that people approach police with weapons on them.”

“So, for my safety and everyone else that’s nearby, yeah, we always … I’m not going to say always, but often will do pat downs for weapons because even someone that’s just trying to talk to us or make a complaint, they have weapons on them.”

McDermott said in her deposition that she wasn’t part of the pat down or conversation with Earl Kistner.

Her back-and-forth with Rupp went like this:

Rupp: “Schultz take his phone. Why are they doing this to him?

McDermott: “I don’t know.”

Rupp: “Did you intervene or ask them to stop?”

McDermott: “I don’t remember.”

Rupp: “Had the young man done anything?”

McDermott: “I don’t remember.”

Attorney: “You were standing right there. Did you think it was appropriate for the officers to rough up Earl? Watch it again.”

In fact, McDermott answered “I don’t know” or “I don’t remember” for most of the questions about the encounter officers had with Earl Kistner.

Rupp said in an interview that Earl Kistner thought his father was hurt and wanted to get him help. Instead, Rupp said, Earl Kistner got intimidated by the officers.

“I mean, nobody deserves to be roughed up by a police officer unnecessarily,” Rupp said.

“Earl was simply trying to bring some help to his father. So, it’s just the wanton and very spontaneous way that they just did it with no provocation on a city street. Unfortunately for them they didn’t realize cameras were filming.”

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