Buffalo police officers involved in a New Year’s Day 2017 vehicle accident with a pedestrian have contended in a civil rights lawsuit that the man threw himself onto the vehicle and top brass said they have no reason not to believe them.
But their sworn statements have since been scrutinized by an accident reconstruction expert hired by the plaintiff, who concluded that the neither the security footage nor a reconstruction of the incident support statements made by police.
As James Kistner’s civil rights case winds its way through federal court, the same question keeps coming up: What does the security video footage show?
Kistner and his attorneys argue that the video clearly shows a police vehicle running into him and officers declining to provide any medical care.
City officers, however, alleged that Kistner threw himself into the vehicle and acted belligerent toward them, which they believed indicated he might be a danger to himself or others.
For the first time, both the current and former police chiefs provide their own descriptions of the security footage in video-recorded depositions obtained by News 4 Investigates. They, too, agree that the video is “really not clear” and “it’s hard to tell” if Kistner was either struck by the police vehicle or threw himself into it.
But analysis from an accident reconstruction engineer hired by Kistner’s attorneys concluded that a “frame-by-frame” review of the surveillance footage together with a distance tracking analysis and reenactment, show that Kistner “did not lunge, jump towards, or throw himself at the vehicle.”
In addition, the engineer concluded that one officer’s claim that he saw the incident through the driver’s side mirror of his partner’s police vehicle is “not supported by the laws of physics.”
Kistner is suing the City of Buffalo and the four police officers involved for false arrest, false imprisonment, and malicious prosecution.
He accused the officers of trying twice to admit him to a psychiatric ward at ECMC and concocting a cover-up plan to charge him with a felony rather than admit to superiors that an officer had struck him with her police vehicle.
City attorneys have denied the allegations in court papers.
What happened? Depends on who is asked.
On New Year’s Day 2017, Kistner was having breakfast with his sons when he noticed police activity at one of his rentals across the street on Schmarbeck Avenue.
Kistner walked outside to ask police for details. One police vehicle passed by him before he could pose any questions.
The second police vehicle, driven by Officer Lauren McDermott, moved forward as Kistner approached. The video shows Kistner extended his left hand before making contact with the police vehicle.
Kistner fell and said his head struck the pavement.
Kistner said police ordered him to get up, instead of providing any medical aid, and threatened to charge him with fraud. He also accused them of cancelling several 911 calls made by his son and a neighbor.
He was handcuffed and left in the back of a police vehicle for about a half-hour, court records state, before he was taken to ECMC.
McDermott said during her deposition that Kistner purposely threw himself at her vehicle. Later during the same deposition, McDermott said that she did not recall seeing Kistner once she began to pull away.
Two other officers at the scene, Kyle Moriarity and Jenny Velez, who was McDermott’s passenger, testified in their depositions that they could not remember or did not witness the accident.
Kistner contends in court documents that three of the officers relied on the observations of Officer Karl Schultz, who testified in his deposition that while a passenger in the other police vehicle, he observed through the driver’s side mirror Kistner throw himself onto the vehicle.
That testimony has since been called into question by an expert engineer hired by Kistner’s legal team.
Prosecutors eventually dismissed the criminal charges filed against Kistner, and now he is fighting back with his civil lawsuit.
Kistner also filed a complaint with the Internal Affairs Division in March 2017, but police officials said they did not recall getting the complaint. The police department did not launch an internal investigation until after WIVB published and broadcast a story about the incident in December 2019.
The Internal Affairs Division (IAD) completed its investigation in August 2020, with Police Commissioner Byron Lockwood concluding there was not enough evidence to find any of the officers in violation of any policies or procedures. He officially deemed the complaint as “not sustained.”
“There’s pending litigation against the Buffalo Police Department as a result of what happened to Mr. Kistner, so, I’m not at all surprised that internal affairs found nothing,” said Anthony Rupp, one of Kistner’s attorneys, in an earlier interview with News 4 Investigates.
Kistner’s legal team hired Impact Analysis Inc of Michigan to reconstruct the incident and provide expert analysis of the video and testimony given by the four officers.
The engineer took exception to the testimony of Schultz, who said he watched through the driver’s side mirror Kistner “throw himself” into McDermott’s vehicle that he said appeared to be stopped.
“… it looked like he was pretending to fall down because he braced himself with his left arm and then rolled backwards …” Schultz testified in his deposition.
In contrast, Jennifer L. Yaek, a principal engineer for Impact Analysis, concluded that, “There are several inconsistencies with Officer Schultz’s version of the subject incident.”
“Upon review frame by frame of the security camera footage, and as documented above, it is clearly evident that Officer Moriarity’s vehicle never stopped until well after the incident was over,” Yaek wrote in her analysis.
“The frame by frame security video footage clearly shows that the McDermott vehicle did not stop, continuing to move forward through engagement with Mr. Kistner, and it shows Mr. Kistner’s body transition from forward motion to rearward motion due to contact by the McDermott vehicle.”
Bluntly, Yaek concluded that, “The fact that Officer Schultz claimed he saw the whole incident through the driver’s side mirror is not supported by the laws of physics.”
Yaek reconstructed the incident on Nov. 23, 2020, using two same-sized surrogates of officers Schultz and Moriarty in a Chevrolet Tahoe under different speeds and one of Kistner in the street.
Based on the reconstruction, Yaek said, “at no time was the Kistner surrogate observed through the driver side mirror from the surrogate passenger’s point of view.”
“This view was strictly of the grass and roadway area located to the left of the vehicle … and proving Officer Schultz did NOT in fact see the incident occur through the driver’s side mirror as he testified,” she wrote in her report.
Depositions of top brass
Rupp spent more than four hours deposing Police Chief Byron Lockwood last year.
“What was your conclusion?” of the video, Rupp asked Lockwood.
“My conclusion is that I couldn’t actually say that she intentionally hit the man with the vehicle,” Lockwood said.
“Did she negligently hit the man with the vehicle?” Rupp countered.
“From the investigation it never showed that she was negligent or that she intentionally hit him and from what I saw in the video, I couldn’t determine,” Lockwood said.
“Well, you could see that she hit him with a moving SUV and knocked him to the ground, right?” Rupp said.
“I can see that he was next to the vehicle and all I seen was him go back, and it wasn’t like, I couldn’t determine if she negligently or intentionally hit him with the vehicle,” Lockwood said. “I just couldn’t determine that.”
Lockwood testified that the accident should have triggered a call to dispatch for a lieutenant, the accident investigation unit, and internal affairs, but no such call was made by any of the officers.
Rupp: “What corrective actions did you take or discipline did you impose against the officers who did not report that incident as required by the [polices and procedures manual]?”
Rupp: “Is there some exception in the police manual that if the pedestrian is walking at the time he’s struck by a police SUV that there’s no requirement to notify the lieutenant, the investigation unit or IAD?”
Lockwood: “IAD should have been notified.”
Daniel Derenda, the former police commissioner who was in charge when this incident happened in 2017, testified that he adopted the policy in 2010 that requires internal affairs to be notified of any police-involved motor vehicle accidents and the accident investigation unit could be called in, depending on the seriousness of the accident.
Attorney Chad Davenport deposed Derenda about the policy.
Derenda: “Every accident needed to be investigated. That was my policy. Even minor accidents.”
Davenport: “When you put that policy in place, who did you notify?”
Derenda: “Everybody knew about the policy.”
Davenport: “Was there any training sessions on that new policy?”
Derenda: “Not that I believe. Policy is simple: If you’re involved in an accident, call internal affairs.”
Derenda also added that if it were an individual who damaged a police car, as Kistner was accused of doing, then, “I don’t believe that’s an accident.”
“Deliberately or somehow damaged a police car, that may not qualify as an accident.”
Rupp asked Lockwood if he was aware that all four officers at the scene testified that Kistner initiated contact with the police vehicle.
Rupp: “And is that what’s shown on that video, Mr. Lockwood?”
Lockwood: “It looked like, to me, what I’m seeing on the video, he walks up to the vehicle as the vehicle is moving and …”
Rupp: “Did he look like he threw himself at the vehicle?”
Lockwood: “It’s hard to tell.”
Rupp: “It’s hard for you to tell whether or not Mr. Kistner deliberately threw himself at the SUV from the video I just showed you? Is that your testimony, sir?”
Lockwood: “My testimony is that I don’t think that it was intentionally they hit him and they’re saying he threw himself in and I don’t think they intentionally ran the guy over.”
Derenda came to a similar conclusion after watching the security footage.
Davenport: “When watching that video, did it appear that the individual threw himself at the police vehicle?”
Derenda: “It’s really not clear. You see that there’s contact but I can’t tell you what took place with what you’re showing me.”
Davenport: “Do you believe that in watching this video it was conclusive enough that Mr. Kistner threw himself at the police vehicle where internal affairs did not need to be called to the scene?”
Derenda: “I’m saying the video is inconclusive to what took place, in my opinion.”
Kistner’s attorneys have filed a motion for partial summary judgment on April 28 for a judge to grant relief on Kistner’s claims for false arrest, false imprisonment, and malicious prosecution. They are also asking the judge to dismiss the defense of qualified immunity raised by the four police officers.
Final replies from both the city and Kistner’s attorneys are set for May 21, and oral arguments will be held by teleconference on May 26.