Buffalo is inching closer to a crisis in relations between law enforcement and the community, according to local activists, a situation made more precarious by the deaths of two young men at police hands in recent months.
Both deaths are currently being investigated by the office of New York State Attorney General Eric Schneiderman. In the meantime, the Buffalo News offers police reporting that evinces a bias, sometimes subtle and sometimes overt, that privileges police sources and police versions of events over the versions offered by the community and by those who find themselves on the wrong end of aggressive policing.
Possible bias in the newsroom has been on our radar since at least early February, when News reporter Lou Michel wrote a story about rising violence against police officers in Buffalo. The story failed to contextualize the data with trends elsewhere in the country, failed to provide any description as to the nature of the injuries officers sustained, and failed to mention how the reporting of injuries could impact the renegotiation of the police contract set to expire in 2019.
A week after that story ran, after Wardel “Meech” Davis died during an incident with police that has since been ruled a homicide by the Erie County medical examiner, News reporter Sue Schulman reported that former Buffalo cop Cariol Horne had been arrested protesting police brutality during a demonstration prompted by Davis’s death. The News mentioned Horne’s history as an officer, and that she had been dismissed in 2008 following her altercation with fellow officer Gregory Kwiatkowski, who she claimed was choking a suspect. Never did Schulman mention that Kwiatkowski pled guilty last December in federal court to police brutality charges stemming from a separate incident.
Twice in the past month the Buffalo News has interviewed Police Benevolent Association attorney Thomas H. Burton on controversial legal matters without providing a counterbalancing opinion from any other legal expert.
In late April, the Buffalo News broke a story that Meech Davis’s death had been ruled a homicide. While the News printed quotes from the opposing side’s attorney, Steve Cohen, expressing frustration that the autopsy hadn’t yet been released to the family but was already in the hands of the News, the News offered Burton the sole legal opinion on the most important matter at hand:
A forensic determination of ‘homicide’ does not equal murder, Burton said.
“There’s a fundamental difference between the strict, forensic definition of a homicide — a death with the involvement of another human being — versus a penal law homicide where there is wrongful or evil intent,” Burton said. “Those two terms are different depending on the context.”
At the time Davis was killed, he was suffering from asthma and bronchitis, according to news reports.
Cohen does not share Burton’s nuanced view of the language. “The truth is simple,” he said. “The facts are the facts.”
Local attorney Parker MacKay, whose practice includes criminal defense and civil rights law, says that Burton’s assertion is incomplete. “The forensic definition can only be taken so far,” MacKay told The Public. “The legal definition of homicide covers a variety of crimes ranging up to murder, all with different intent elements.”
In other words, it matters what the AG’s investigation turns up. “A full investigation should be expected to uncover what information the officers had once Mr. Davis was in custody that indicated he had health problems, and what, if any, steps were taken in response—with an ultimate conclusion of whether those facts support the mental element for a sustainable charge of any degree of homicide,” MacKay said.
In describing the incident earlier this month in Black Rock, in which Buffalo Police Officer Justin Tedesco shot and killed the apparently unarmed Jose Hernandez-Rossy in the back as he ran away, the News again relied solely on Burton’s biased legal expertise:
“The officer needed a reasonable grounds to believe his partner was shot and if that exists, which it obviously does, the shooting officer did not commit a crime and has a defense under New York law,” Burton said.
MacKay agrees that officers are given deference in split-second decisions they encounter on the job, based on the standard of what a “reasonable officer would do under the circumstances.” But because the community has more questions than answers in this case, “a determination of what is reasonable should come after the attorney general has collected all the facts,” MacKay said.
But accountability doesn’t end there, according to MacKay. Municipalities are responsible for safeguarding civil rights and properly training their officers in citizen engagement. “Under federal law, a municipality can be held liable where, for instance, it fails to properly train officers because pervasive failure to train is thought of as an official ‘policy,’” MacKay said.
“Even if the officers acted reasonably so as not to support criminal charges or individual civil liability in this instance (if the facts ultimately show that the officer’s belief was reasonable under the circumstances), there could still be an open question as to whether the incident arose as the product of something larger and more structural—such as whether officers are taught adequate and appropriate de-escalation procedures, or whether officers are routinely complying with the legal standards needed to initiate police-citizen encounters in the first place.”
We asked the News about Burton’s elevation to expert status, with no conflicting or unbiased legal opinions offered. News editor Mike Connelly made the following statement: “Thomas Burton isn’t an expert; he is an advocate for his client. We interview him to get one side of a story, just as we interview others to get other sides of the story.”
To Syracuse University journalism professor Roy S. Gutterman, the Buffalo News’s practice of using Burton’s definitions of homicide and use of force standards appear “balanced and clear.” “As long as everyone is identified so his or her interests or agendas can be clearly understood by the readers,” Gutterman, who also holds a law degree, told The Public, “it seems like reasonable use of quotes.”
Last week, the News editorial board wrote an opinion expressing optimism over the state attorney general’s office becoming involved in the Hernandez-Rossy case. The editorial included this assertion: “Certainly, Police Commissioner Daniel Derenda has over the years made clear his intolerance for police misconduct.”
That assertion was made the same week that the News reported on a guilty plea entered by a towing company that operated a bribery scheme with the Buffalo police—a case in which not a single officer was charged. The News reported on another guilty plea last week, too, in a case where an unprovoked cellblock beatdown was witnessed by two Buffalo officers who did nothing to prevent or report the abuse. Neither police officer has been charged, though both were suspended without pay.
Last December, Investigative Post’s Daniela Porat ran a series of articles highlighting the BPD’s inadequate training, pointedly asking city officials whether Buffalo was “tempting a Ferguson.”
At the time, Masten District Councilman Ulysses Wingo told her: “Clearly we must be training our officers pretty well in those areas in those few hours that they’re being trained in order for them not to have had the occurrences that are happening across the country. For all the people who have experienced police brutality, there are countless others who have not experienced police brutality.”
Mayor Byron Brown was also unconcerned: “We have very well-trained police officers. I believe we have one of the best police departments in the country.”
“We are at a moment of crisis in Buffalo around policing,” John Washington, organizer with PUSH Buffalo, told the Common Council this month, three days before Hernandez-Rossy was shot by police.