The homeless man barely moved when two Buffalo police officers stood over him on a sidewalk while one struck him with a baton six times before jamming it into his upper body.

The man was on the ground in a fetal position and showed no signs at that time that he was resisting arrest.

Neither officer had their body cameras on, which is a violation of department policy, so the police department said it has no video record of what happened. In addition, neither officer filled out a required form that would have explained why the body cameras were not turned on.

But a local resident who witnessed the March 13 incident on the corner of East Ferry Street and Humboldt Parkway captured about 40 seconds of the encounter on her cell phone. She shared the video with News 4 Investigates because she said she was disturbed by what she saw.

When the woman, who asked not to be identified, confronted the officers, one told her that “we have to give him a ticket, he’s been beating up people’s cars.”

The woman told News 4 Investigates that the incident left her scared and sleepless.

“I called my mom,” the woman said. “I was distraught. I’m like, ‘Mom, what do I do because I can’t call the police because this is the police.’”

The video does not show what led the officer to use his baton, but the use of force reports obtained by News 4 Investigates through a Freedom of Information law request alleged that the man was refusing orders and became verbally aggressive toward both officers. The two officers also said the man fled before they could write him a ticket, but the witness said that is incorrect.

Buffalo Police Department Commissioner Joseph Gramaglia and city spokesman Michael DeGeorge declined to answer specific questions about the incident. DeGeorge said the police department does not have any complaint on file about this incident so there has not been any internal investigation.

The cell phone video and documents filed by both officers raise questions about whether the use of force was justified.

Lou Reiter, a police consultant with more than six decades of law enforcement experience, including two decades with the Los Angeles Police Department, deemed the use of force as “inhumane.” Reiter said while the baton blows were not “power strikes,” they were “unreasonable” based on the position of the suspect and his lack of movement and resistance.

“When you watch the video, I mean, there is no excuse for what the officer did by using his baton on this guy who’s on the ground, kind of curled up in a fetal position,” Reiter said.

Officers’ reports

The incident happened at about 11:10 p.m. Officers Joseph Walters and Richard Lopez wrote in reports that they were on routine patrol when motorists flagged them down about a panhandler who allegedly turned aggressive when people refused to give him money.

The incident report states that the suspect became “verbally threatening and refused to get out of traffic” before he was “stopped finally on sidewalk and detained for ID purposes.”

Walters wrote that the suspect “became verbally aggressive towards me and refused to get on the sidewalk.”

“I used my hands to guide him onto sidewalk and he pulled away many times and kept wandering into moving traffic,” Walters wrote in the use of force report. “He was eventually corralled onto a lot out of the street but refused to identify himself and kept reaching into his coat despite orders to stop. He was pulled to the ground to keep him still in an effort to calm him and identify him and pat down frisk him for weapons.”

The woman who recorded the video said she saw the man trying to pull away from officers as they walked him to a sidewalk, but once they reached the sidewalk, they pushed him to the ground. She said the man was in that neighborhood before and she’s never seen him get aggressive.

“At no point did they ever cuff him,” the witness said. “They didn’t seem like they was attempting to cuff him. Actually, what they did was push him to the ground and started beating him.” 

Lopez’s use of force report states that the suspect refused his orders to leave and give his name.

“Subject approached me in a threaten matter (sic) and I used my police issue baton to take away the threats, and forced him to the ground,” Lopez wrote.

However, the video obtained by News 4 Investigates shows the man was already on the ground in a fetal position when Lopez struck him six times with the baton.

Both officers wrote that the man fled before they could write him a ticket.

But the witness of the incident told News 4 Investigates that the man never fled because she talked to him afterwards. It was then, she said, that she noticed he had an injured hand and a bump on his head. Officers both wrote in the use of force reports that they did not see any injuries.

“His hand looked like it was broken,” the woman said. “He had a very large lump that almost looked like back in the day if you see a cartoon character got hit in the head.”

Policy violations

Buffalo Police Department policy states that officers must activate their body-worn cameras when responding to, servicing, and clearing any calls for service, as well as when conducting a traffic stop and when executing a search or arrest warrant, among other examples.

But neither officer had body cam footage of this incident, News 4 Investigates learned from a response to its Freedom of Information law request. The use of force report indicates that Lopez’s camera was “improperly deactivated” but provides no additional details.

In addition, department policy requires officers to fill out a specific form to explain why their body cameras were not activated or why they malfunctioned. But neither officer filed such reports, News 4 Investigates learned.

The use of force itself is another potential policy violation. The department’s use of force policy states that officers can use objectively reasonable force to effect an arrest or prevent someone from escaping custody if the force used is consistent with state law.

In other words, they may have had cause to use force at some point during the incident if the man did indeed resist or try to escape custody. The policy states that “excessive or unreasonable force shall not be used” and that officers can only use the amount of force that is objectively reasonable to overcome a subject’s resistance or aggression.

Captain Jason Whitenight, who did not respond to an inquiry by email, wrote in the use of force report that the officers followed “the standards set forth by the Buffalo Police MOP.”

“The officer used the correct amount of force needed to remove a subject from the street and then attempt to issue a ticket,” Whitenight wrote.

Reiter, the police consultant, said officers should have handcuffed the man while he was on the ground instead of striking him over and over with the baton.

“But you don’t go up there and just start using your baton to hit him and I don’t know what the purpose was other than — it was a dehumanizing kind of action on their part, like he’s just trash,” Reiter said. “That’s what upsets me probably more than anything is the indignity that they evidenced about another human being.”