Mar 18


Pepper spray and f-bombs got a Buffalo cop fired

An arbitrator upheld the officer's dismissal, prompting the police union to take the unusual step of asking a court to reinstate Kevin Murphy, who collected $276,000 while suspended.

Warning: This video contains graphic content. On March 25, 2020, Buffalo police officer Kevin Murphy pepper sprayed and arrested Lakisha Neal. Viewer discretion is advised.

The Buffalo police union is asking a judge to overturn an arbitrator’s decision upholding termination of an officer who doused a woman with pepper spray and repeatedly swore at her.

It’s rare litigation. Erie County Supreme Court documents dating to 2013 show no other cases of either the city or the police union asking a judge to reverse an arbitrator’s decision on whether an officer should be fired.

Lakisha Neal, 42, filed an internal affairs complaint seven months after Officer Kevin Murphy arrested her on March 25, 2020. Body camera footage shows Murphy grabbing Neal, cursing and twice spraying her with pepper spray while other officers do nothing to intervene other than telling Neal to cooperate.

“Get in the car or get sprayed!” Murphy demands after grabbing Neal by the arm and forcing her to a patrol car. Murphy deploys pepper spray after Neal says she’s pregnant.

“Will y’all listen to me?” Neal asks seconds before Murphy sprays her. As tears from the first spraying run down Neal’s face, Murphy sprays again after Neal tells him that she can’t breathe.

Body cam footage captures Murphy dropping at least five f-bombs, with the first one coming 10 seconds after he arrived and pulled Neal from a porch.

“Shut the fuck up!” Murphy shouted, cutting Neal off in mid-sentence. 

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The video footage was shot by Murphy’s body cam. It was introduced as an exhibit by the city as part of the lawsuit.

Neal was arrested and charged with making a false report, obstruction, reckless endangerment and resisting arrest. Those charges were dismissed in court.

An arbitrator last fall upheld the department’s firing of Murphy for excessive force and falsely stating that Neal had admitted telling a dispatcher that a gun was at the address.

“(Murphy) did not allow himself a second to assess the situation and determine what Neal’s role in it might have been,” arbitrator Jeffrey Selchick wrote in his October decision. “Instead, (Murphy) jumped to conclusions and immediately decided that Neal was a suspect, never considering she may have just been an innocent party in the situation.”

The Buffalo Police Benevolent Association is asking a judge to overturn the arbitration decision reached after Murphy collected more than $276,000 in salary from the city while his disciplinary case was pending.

Murphy, who joined the force in 2015, suspected Neal of falsely telling a dispatcher that there was a gun at the scene, according to court filings. A man was the 911 caller, according to dispatch records the city introduced during arbitration, and had reported a woman was at the Dartmouth Avenue house threatening someone with a gun. The dispatcher alerted officers that the gun report was false before Murphy arrived, the city told the arbitrator.

The union during arbitration proceedings argued that Murphy hadn’t used excessive force and did not deserve termination. Officers aren’t prohibited from cuffing or deploying pepper spray on pregnant women, the union maintained, and Murphy testified that women seeking leniency sometimes lie about being pregnant, according to arbitration records filed by the union in the lawsuit.

Body cam footage showed that Neal never said “I’m the one who called about the gun, I wanted y’all here faster,” as Murphy wrote in paperwork after arresting her. Murphy’s erroneous statement wasn’t made in bad faith, the union maintained, according to arbitration records. The union also argued that Murphy had no obligation to talk to Neal until she’d been secured inside a patrol car.

The arbitrator found that Murphy knew that Neal didn’t have a gun and that he’d failed to use de-escalation techniques. Selchick cited testimony from former Police Commissioner Byron Lockwood, who suspended Murphy after Neal complained to internal affairs.

“If you pull up and you see people, you know, standing there talking, no guns drawn, I mean, something should slow you down by that time, you know: OK, let me find out what’s going on,” Lockwood testified during arbitration proceedings. “I see no reason for him to even put his hands on that woman.”

Selchick called Murphy the “architect” of Neal’s resistance.

“By his actions, (Murphy) escalated the situation and turned what appeared to be a calm scene when he arrived into a situation where Neal, resisting and screaming back at (Murphy), ended up being pepper sprayed,” Selchick wrote. “Without even attempting any de-escalation techniques, (Murphy) drove his encounter with Ms. Neal to the point where he unnecessarily sprayed her twice in the face with a chemical agent.”

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The city referred the case to the Federal Bureau of Investigation, the U.S. attorney and the Erie County District Attorney’s Office, according to arbitration records. Phone calls to the U.S. Attorney’s Office and the FBI were not returned.

A review by our office found no evidence that a crime occurred that could be proven beyond a reasonable doubt in a court of law,” Kait Munro, spokeswoman for Erie County DA John Flynn, wrote in an email.

Assigned to E District, Murphy was suspended one week after Neal complained. After 30 days of no pay, the city resumed paying Murphy, standard procedure in disciplinary matters that stretch longer than one month. Officers accused of serious misconduct typically are placed on paid suspension until their cases are decided. From the day of his suspension to Selchick’s ruling last fall, the city paid Murphy $276,723, according to city payroll records.

Murphy earned nearly $115,700 in 2019, his last full year on the job before his suspension, according to payroll records published by the Empire Center For Public Policy. 

Erie County Supreme Court records going back more than a decade show no other cases of the city or the police union appealing an arbitrator’s decision in a termination case.

Judges rarely overturn arbitrators, said Lee Adler, an attorney and lecturer at the School of Industrial and Labor Relations at Cornell University.

“It’s extremely hard to overturn an arbitrator’s decision by challenging it in the courts in the state of New York,” Adler said. “The likelihood of being able to reverse an arbitrator’s decision is likely not even one in ten.”

Rodney Personius, attorney for the PBA, declined an interview request, citing a state rule of professional conduct that governs pretrial publicity and restricts what lawyers can say.

“I am reluctant to discuss the case, even in a generic case,” Personius wrote in an email. “I do think our petition has considerable substantive merit; it is not a pro forma filing.”

Neither Police Commissioner Joseph Gramaglia nor Michael DeGeorge, spokesman for the department and Mayor Byron Brown, responded to interview requests.

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