No prosecution in deadly police shooting

Editor’s note: The clip above shows the key minute of the encounter between police and Rafael Rivera. A second clip below expands on that video.

In an announcement Monday, Erie County District Attorney John Flynn said the Buffalo police officer who fatally shot Rafael “Pito” Rivera in September did nothing wrong and will not be prosecuted.

That doesn’t mean the matter is settled, however.

Rivera’s family has served a notice of claim, in anticipation of a wrongful death lawsuit against the city and police department. In addition, the family’s attorney said he plans to ask the state Attorney General to open an investigation.

The shooting was captured by a surveillance camera mounted to the headquarters of PUSH Buffalo, in whose parking lot off Plymouth Avenue the deadly shooting occurred on Sept. 12. The video was not made public until Monday afternoon, when Steven Cohen, the family’s attorney, showed it at a press conference. His office provided a digital file of the shooting to Investigative Post.

The video shows Rivera rounding the corner of the parking lot a little after 3 a.m. when he trips and crawls a few feet. He gets up and continues to run away before he is shot by officer Elnur Karadzhaev, who then handcuffs him as he lies on the ground.

Rivera is the third man of color to die in an encounter with Buffalo police in the past 19 months, coming after Wardel “Meech” Davis, 20, in February 2017 and Jose Hernandez-Rossy, 26, in May 2017. Investigations by the Attorney General did not find officers at fault in those deaths.

Flynn said Rivera was holding a gun in his right hand when he tripped and, as he got up, “turned toward” the officer. At that point, Karadzhaev fired six shots at Rivera, three of which hit him. One shot struck Rivera in his front right side, another grazed his forehead, and a third hit him in the back.

“The video shows him turning briefly to the side and shows something coming out of his hand,” Flynn said.

Flynn noted that a fully loaded handgun with 15 rounds was found next to Rivera’s body and said testing confirmed that only Rivera’s D.N.A. was on it.

Central to the District Attorney’s claim that Rivera turned toward the officer was the statement of an eyewitness who had been sitting in his car in the parking lot during the shooting. The guard, working for a security firm retained by PUSH Buffalo, said he was about 30 feet away when he saw Rivera run into the parking lot.

“I looked and the guy in the red hoody was getting up off the ground with a gun in his right hand, as he was getting up he was turning toward the officer,” the guard was quoted as saying in a statement Flynn read to reporters.

Flynn emphasized the shooting of Rivera was justified, and not like other police shootings in the U.S. in which officers have improperly used deadly force.

“The officer had 16 rounds in his gun, one in the chamber and 15 in the magazine, and he did not fire off all 16 rounds, he fired off only six, so it’s not like the officer was reckless here and shooting off his entire gun,” Flynn said.

The District Attorney said he did not look at Buffalo police policies and procedures in his investigation. He did not consider placing the evidence before a grand jury, because the case was so “clear cut.”

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Cohen, the family’s attorney, sees the video differently.

He sees “a man gunned down without just cause,” and emphasized that Rivera was fired on as he was running away from the officer. He disputes that Rivera turned towards the officer before he was shot, or that he pointed a weapon at the officer.

Cohen argued that because Rivera was running away, Karadzhaev did not act in accordance with Article 35 of the state penal law, which prohibits using deadly force unless an officer or another person’s life is in imminent danger. The family’s notice of claim also took issue with Buffalo police training—or lack thereof—on use of force, as Investigative Post has previously reported.

Cohen complained that he has not been permitted to see key evidence from the investigation, including a copy of the autopsy and toxicology reports, witness statements, or any testing done on the gun recovered at the scene. He also noted that Rivera’s family was not contacted during the investigation, nor were they asked to present any of their evidence. It is unclear whether it’s normal for investigators to take such steps.


Here’s a sampling of Investigative Post’s previous coverage of Buffalo police.