Arthur Jordan, Jr. with his sons.
Arthur Jordan, Jr. with his sons.
Cariol Horne at a recent protest.

Public Record: Judge Rules Out Jordan's Gun, Horne's Charges

by / Jul. 19, 2017 7am EST

Judge Rules for Jordan: Last Friday, US Magistrate Judge H. Kenneth Schroeder issued his ruling on the pretrial suppression hearing concerning Arthur Jordan, Jr. Schroeder ruled to suppress the evidence seized in the arrest, namely the handgun in Jordan’s back pocket and incriminating statements he made to arresting officers while the pepper spray was still burning his eyes.

Jordan’s case lies at the heart of the Buffalo Police Department’s at times loose adherence to the Fourth Amendment. A year ago, in the wake of the Alton Sterling and Philando Castille shooting deaths by police, Jordan posted on Facebook “Let’s Start Killin Police Lets See How Dey Like It.” His post caught the attention of the FBI and also members of BPD’s Strike Force, who would later testify they knew Jordan and had long considered him a member of a Central Park gang. When they spotted Jordan entering a Metro PCS store on Main Street near Fillmore, four officers—Adam Madorski, Joseph Acquino, Michael Acquino, and Mark Hamilton—followed him in and told him he was wanted for questioning. When Jordan said he wouldn’t go with the officers, who lacked both a warrant and probable cause for an arrest, the officers closed in on him, eventually restraining him enough to perform a search. Judge Schroeder describes what happened next, according to the store’s video which was viewed at the hearing:

As Jordan is pinned down on the counter with his hands up, Officer Madorski moves around the other officers to spray copious amounts of pepper spray in Jordan’s eyes. Officer Joseph [Acquino] then flips Jordan over the counter in a bear hug, Officer Hamilton handcuffs Jordan from the opposite side of the counter, after which Officers [Michael] Acquino and Joseph [Acquino] punch Jordan in the head. According to Officer Acquino, he “had to [punch Jordan] to effect the arrest.”

The details of the case rankled Judge Schroeder’s sense of Fourth Amendment case law during the suppression hearing, where he shared concerns about the lack of probable cause and the thin evidence the BPD and the US Attorney shared to support reasonable suspicion, and made a point of pointing out how video evidence contradicted Michael Acquino’s testimony regarding the behavior of the two men who were with Jordan that day, who Acquino stated added to the officer’s suspicion due to “nervous” behavior. Public defender John Humann raised the issue of Officer Hamilton putting on black gloves as he entered the store as a non-verbal threat communicated to Jordan and his two colleagues, and Judge Schroeder agreed. He quoted his own observations from the hearing:

You can’t say well, the police officer can have his suspicions and be nervous but the defendant cannot have his suspicions and be nervous. It can’t just be one way. We all know—psychologists will testify that in the African-American community, young people, especially young men, when they see police have a different reaction [of] fear … because they know there are police who will beat them up or who will shoot them, and they act accordingly. They act nervously. They run. They hide. Does that mean they are engaged in criminal activity?

The generosity of Judge Schroeder’s statement comes into focus in the cases of both Jose Hernandez-Rossy and Wardel Davis, the two unarmed men of color who died by police hands this year. Hernandez-Rossy was found to be carrying drugs, according to police and reports. One of the two officers involved in Hernandez-Rossy’s shooting death was Joseph Acquino. Davis, on the other hand, was clean and no information about his being under the influence of any substance has come forward since a toxicology was performed by the medical examiner. Police have also not demonstrated their cause for reasonable suspicion for Davis’s arrest, though for Hernandez-Rossy police stated nearly a week after the fact that he was pulled over after officers saw him smoking marijuana. Hernandez-Rossy was shot in the back while running away from police and there has been speculation that Wardel Davis ran from police as well.

Judge Schroeder’s recommendations on the case head to US District Judge Frank P. Geraci, Jr. for final review. Reversals of such recommendations are rare but possible, though district judges usually defer such cases to the magistrate judge who saw and heard the testimony, according to Jordan’s public defenders John Humann and Martin J. Vogelbaum. “It is a very fact dependent decision,” Humann said of the Schroeder decision.

Arthur Jordan, Jr. is still on the hook for his federal indictment for “transmitting in interstate commerce a threat to injure one or more police officers,” which his public defenders have portrayed as a form of protected political speech rather than a true threat.

Charges Added to Cariol Horne Case: Cariol Horne was arrested last February for blocking the intersection of Franklin and Court streets during Mayor Byron Brown’s State of the City address in protest of Wardel Davis’s death, and as we reported last week, was arrested this month for trespassing while attempting to attend a court appearance on her case. She had been powering down her phone when an officer, named by Horne as Officer Doxbeck, told her she could not be on her phone in the courtroom. Horne informed him that the phone was now off, and Doxbeck asked her her name to check her into the courtroom. According to Horne, when he discovered her identity, he ordered her to wait outside. Horne refused, fearing that if the officer forgot about her, she could be issued a bench warrant for failing to appear.

Horne returned to court last week with some supporters there to advocate for her fair treatment, only to find herself charged with two additional crimes by Judge Craig T. Hannah: disorderly conduct and contempt of court. Horne wrote The Public that they were trying to make her look like “the angry black woman.” “Truth is,” she wrote, “after all I’ve been through, I should be.” It should be added that Cariol is a mild-mannered grandmother in reality and in character, and a former police officer who understands how to respectfully interact with an authority.

And Horne also claims this isn’t the first time she’s felt targeted by authorities. In a 2015 traffic stop in the Town of Cheektowaga, Horne claims she was given multiple seatbelt violation tickets for herself and her passengers even though everyone was wearing a seatbelt. Horne claims the tickets were issued and the seatbelt claim was made only after the officer received Horne’s identification.

Horne was a 19-year veteran of the BPD until her dismissal after a 2008 incident in which she freed a handcuffed man from a police chokehold. The officer in question in that incident, Gregory Kwiatkowski, has since retired and pled guilty last December to police brutality charges in federal court. Judge Schroeder, in fact, alluded to that case from the bench during the Arthur Jordan suppression hearing to point out that some people have good reason to fear police.