After spending a month in the hospital, a Black Rock man shot by Buffalo police filed a notice of claim against the city Monday, typically precursor to a lawsuit.
Jon Battison, 36, was holding a pellet rifle to his own chin in the attic of his home on Tonawanda Street when Officer Kereem Johnson pulled the trigger eight times. One round found the mark, striking Battison near the shoulder.
Police went to the home on Sept. 23 because Battison was reportedly suicidal and had ingested pills.
“Suicide by cop,” Battison told police as he lay wounded in the attic of his own home on Towanda Street. “You gave my family a really great lawsuit. That was really dumb.”
Body camera footage shows that Battison kept the barrel of the pellet gun motionless against his chin, never pointing it at police, who repeatedly ordered him to drop the weapon.
“Are you going to shoot me because I have a gun to my own head?” Battison asked seconds before shots rang out.
Caution: This video from the body cam of the police officer who fired the shots contains graphic violence and language.
In his claim against the city, Battison said that officers used excessive force and weren’t properly trained. He also says police violated the Americans With Disabilities Act and that a crisis intervention team consisting of officers trained to deal with people undergoing mental health crises should have been summoned. Police, he says, should have used non-lethal weapons.
“Sadly, this unnecessary resort to deadly force against an individual was not unusual, but rather is part of the BPD’s institutional policy and practice of using unconstitutionally excessive force, particularly against people with disabilities, and those experiencing mental health crises,” according to the notice of claim.
Police commissioner Joseph Gramaglia has defended officers. He told reporters at a Sept. 29 press conference that he believed Battison was attempting suicide by cop. He also said that most people wouldn’t be able to tell the difference between a pellet gun and a potentially lethal firearm.
“Yes, this turned out to be a pellet gun,” Gramaglia told reporters. “But try to identify that in the middle of a stressful situation. De-escalation training? They all have a caveat, that when you’re dealing with firearms, it really does kind of change the scenario.”
Melissa Wischerath, Battison’s lawyer, rejected the commissioner’s assertions.
“I think suicide by cop has almost been a cover or a term of art to justify that people having a mental health crisis should be met with unreasonable use of force,” she said.
Noting that Battison was alone in an attic with a stairway the only way out, Wischerath said police had time to determine that he was holding a pellet gun. Officers, she said, could have called colleagues trained in dealing with people having mental health crises.
“It’s so hurried to shoot him,” Wischerath said. “They had all the time in the world to wait at the bottom of the stairs and communicate with him. It was such an isolated location, where he was posing no harm to others.”
Police found seven firearms in Battison’s house. Prosecutors have filed criminal possession of weapons charges.
Justin Ginter, defense attorney in the weapons case, said that all seven guns belonged to Battison’s father, were legally owned and were safely locked up. The weapons, he said, were in Battison’s house because there’d been a fire at his father’s home.
“Based on the information we have, we believe it should be resolved in a favorable way,” Ginter said.
Johnson, who joined the force in 2018, was placed on administrative leave, standard procedure when police shoot people. His current duty status isn’t clear. Police spokesman Mike DeGeorge did not respond to a request for comment.
The Erie County district attorney’s office and the department’s internal affairs division are investigating the shooting, standard protocol when officers use deadly force, Gramaglia told reporters at the September press conference. Kait Munro, spokeswoman for Erie County District Attorney John Flynn, said that her office’s investigation isn’t complete.
Wischerath said her client has not been able to return to his job working with software.
“He might not ever be able to work again,” she said.
The claim doesn’t state how much Battison deserves in damages. He wants more than money, his lawyer said.
“One of the main goals of this case is to get change and training and supervision,” Wischerath said. “If anything, [the shooting] sends a message to the public that you can’t call 911 if your loved one’s in a mental health crisis because they’ll kill him.”