BUFFALO, N.Y. (WIVB) – During a rare meeting of Buffalo Common Council’s Police Oversight Committee, a group of community members asked, again, for the support of a new model of police supervision led by city residents bestowed with the authority to subpoena police and investigate complaints against officers.
Those community members, who serve on the all-volunteer Buffalo Community Police Advisory Board, got an answer they were not expecting.
Common Council member Ulysees O. Wingo told them during the Zoom meeting a month ago that such a model already exists, and it is the committee of council members that they were appearing before the Police Oversight Committee.
“It’s just a matter of using this current structure because now we’re talking about recommending another police advisory board with a new structure that is literally impeding on the powers that are already given to the Common Council,” Wingo said.
“And I’m taking a risk by saying this but we have the structure built now and I don’t want us to think just because this is not getting us the result as fast as we want, that we need to change it and do something else.”
This was not the first time that the Buffalo Community Police Advisory Board asked for a new board of checks and balances for the police department, but it was the first time they got any idea of what the answer might be from Common Council
“The Council is aware that the BPD does not want additional oversight and has shirked board and Council requests, and, still, the Council has failed to use its subpoena and investigatory powers to demand information and attendance from the BPD,” the Buffalo Police Advisory Board shot back the next day in a letter to council member.
Indeed, the Police Oversight Committee of council members can investigate police and subpoena records and officers, but no one can recall a time that it has ever used those powers.
Right now, all complaints against police officers are investigated by other police officers in the Internal Affairs Division. Not only are they fellow officers, but they are fellow union members of the Buffalo Police Benevolent Association.
And those investigations rarely result in any discipline.
An analysis of police disciplinary records shows that about 10 percent of the Buffalo police officers who had the most complaints of excessive force and general complaints from residents over the past five years got disciplined.
In other words, 90 percent of those complaints resulted in no punishment.
Community members, attorneys and a national expert on police shared their oversight and all agreed that police investigating themselves is not a fair and impartial process.
“When you have 90 percent of the complaints get dismissed and get thrown out, you’re going to have citizens and attorneys that are reluctant to go to Internal Affairs when there are really founded instances of abuse,” John Elmore, an attorney and co-chair of the Minority Bar Association of Western New York’s Criminal Justice Task Force, said.
“You’re going to have more complaints when there’s a higher conviction rate and you’re going to weed the city of bad police officers,” Elmore said.
Buffalo Police Captain Jeff Rinaldo said decisions on punishment are often made by an arbitrator, not the commissioner.
“There have been circumstances I’m sure in the past where a particular commissioner might have felt that somebody’s conduct warranted dismissal, [but] an arbitrator may not have agreed,” he said.
“It’s difficult when you’re not the final say. So, departments have to live within the collective bargaining agreement, and the rules that are spelled out for discipline, and oftentimes the findings of arbitrators, who make the final decision.”
Internal Affairs work?
Attorney Anthony Rupp knows a thing or two about Buffalo’s Internal Affairs Division.
He is the attorney for Bruce McNeil, a city resident who police pulled over in May 2019 for a vehicle violation.
The officers searched McNeil’s car, found nothing, and let him go without even a ticket for the license plate bulb they claimed was not working.
McNeil was mad about the stop. He believed his civil rights were violated, that they had no right or reason to search his car. And he found damage on the hood that he said police caused during the search.
McNeil went to file a complaint against the officers with Internal Affairs and he alleged in a civil lawsuit that a lieutenant on duty refused to accept his complaint and threatened to arrest him for possession of drugs if he did not leave.
McNeil left, but came back to the police station, this time with his mother, who demanded that he get a complaint filed.
Police then arrested him on charges of possession of crack cocaine. The two officers alleged in the police report that they found the crack cocaine after a sweep of the police vehicle in the vicinity of where McNeil sat.
A judge did not believe the story.
McNeil was acquitted by a bench trial and is now suing the city and the police officers for wrongful arrest.
Then there’s James Kistner, who Rupp also represents in a civil lawsuit against the city and several Buffalo police officers.
Kistner alleges that a police officer struck him with a police vehicle and then conspired with other officers at the scene to cover-up the incident by falsifying a police report.
The police report alleges that Kistner threw himself onto the police vehicle, damaging the side mirror, and then proceeded to act mentally unstable to a point where they had to take him to the ECMC’s psych ward.
Kistner has surveillance cameras outside his home that captured the entire encounter on video, which does appear to contradict what officers wrote in the report.
Kistner had filed a complaint against the police officers a few month later, but no investigation had ever been launched by Internal Affairs.
In fact, not until News 4 Investigates reported on Kistner’s encounter with police that New Year’s Day in 2017 did the police department launch an internal investigation.
In August 2020, the Internal Affairs Division determined that there was not sufficient evidence “at this time” to clearly prove Kistner’s allegations.
“I want to assume that they have integrity, and that they’re truly independent, and that they’re conducting a good faith investigation,” Rupp said.
“But look, we have video evidence here of what happened and we have several officers denying what transpired saying they saw with their own two eyes something that clearly is not depicted on the video.”
Rinaldo, the Buffalo police captain, said he could not discuss the McNeil and Kistner cases because they both have active lawsuits against the city.
In general, Rinaldo said, the Internal Affairs Division must prove that what happened in any complaint against an officer was a violation of policies and procedures. That’s what the union rules dictate, he said.
But people cannot rush to judgment by concluding that the system is broken based on the number of complaints that resulted in findings of “not sustained” or “exonerated,” Rinaldo said.
“To follow that train of logic would be that every single complaint the police were wrong, and again, when you look at what it is that we do, it’s highly contiguous, highly litigious. People are very unhappy a lot of times with police interaction and to make an assumption that every time somebody complains, the officers did something wrong, is just not a fair assumption.”
In addition, Rinaldo said it is equally unfair to criticize an officer for having a lot of complaints filed against him or her. Some officers are more active on patrol than others, he said.
“If you come out of the academy and you’re hard working and you go to a busy district and you make hundreds of arrests a year, and you’re out there day in and day out doing your job, you’re probably going to catch some complaints along the way,” Rinaldo said.
“So, to look at an officer that has no complaints and just make a snap judgment that, oh, they’re a great police officer or to look at an officer that has a number of complaints and say they’re a terrible officers – it’s not a fair comparison.”
Push for independent oversight
Elmore, the attorney, said more than 75 percent of police agencies in major cities have police civilian review boards filled with residents who have the authority to investigate, subpoena and discipline officers.
Rochester has a citizen-led review board that can request subpoena power from the City Council, but there are concerns that it is not truly independent of city government and the police department.
Syracuse has a similar board that is completely independent from city government and the police. Members can challenge police on individual complaints and specific policies.
In addition, Elmore said Syracuse officers are required to hand out a card with their name and directions on how to file an internal affairs complaint every time they stop someone.
“And here in Buffalo, we’re taking the opposite approach when it comes to best police practices,” he said.
Mike Powell, who will be the next chairman of the Buffalo Community Police Advisory Board, said they first approached city leaders in June 2020 with the request for an independent citizen-led oversight board with the power to subpoena officers and records and review Internal Affairs decisions. That was shortly after two officers shoved protestor Martin Gugino to the ground, cracking his skull. (A Grand Jury today dismissed felony charges against the two officers.)
“One of the issues with Council holding the only investigative power is Council is not really independent because it is part of city government,” he said.
Speaking for himself, and not the Advisory Board, Powell said: “It feels as if the city government is protecting its power by not allowing or not working toward a more independent model of having whatever group serve as the accountability measure against police.”