David Vann v. the system

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Submitted by T. Forsyth on Thu, 2018-07-19 00:48

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Rochester Police Department (RPD) officers Matthew Drake, Steven Mitchell, and Jeffrey Kester were caught on store surveillance cameras brutalizing David Vann and are named in a federal civil rights lawsuit along with the city of Rochester and several other officers, investigators and supervisors alleging police brutality, violations of Mr. Vann’s constitutional rights, and a police cover-up. Mr. Vann is represented by Elliot Dolby-Shields, Esq. of Roth & Roth LLP; the lawsuit was filed on May 16, 2018.

The anti-police brutality group Enough Is Enough (EIE) recently released to Rochester Indymedia an edited video of the incident as well as the convenience store surveillance camera footage. The group screened the edited video at the Intersections of Rebellion and Accountability panel discussion held in late May. Members of Enough Is Enough were present at Mr. Vann’s criminal trial and received the footage directly from him at that time. You can watch the edited clip below and the raw surveillance camera footage at the bottom of the article.

Rochester, NY Police Brutalize David Vann

Enough Is Enough's Edited Video of the Police Assault on David Vann

The edited Enough Is Enough video

On September 4, 2015, about 11:00 pm, David Vann, 23, a Black man, went to the A & Z Market at South Avenue and Comfort Street in Rochester, New York. He bought a loose cigarette, which cost $0.75 according to the complaint. The store clerk shortchanged him and when Mr. Vann demanded his proper change, another store employee, Dawan Algazali, assaulted Mr. Vann and forced him out the back door. As he walked away from the store, Algazali “exited the store and invited him [Mr. Vann] to come back into the store to get his change,” according to the complaint. Mr. Vann returned to the store, and shortly thereafter, Rochester Police Department (RPD) officer Matthew Drake arrived at the scene.

The edited video of the incident begins with a Time Warner Cable News (TWC) story disseminating the false narrative put out by the RPD that someone at the mini mart fought with officers injuring two of them. The TWC clip also shows Mr. Vann in the back of the police car unconscious, being checked by a paramedic.

After the news clip, a black screen appears with a single question in white font: “But what really happened?” The video fades from black to the interior store surveillance camera footage. The surveillance system only captures video, no audio. Mr. Vann is seen walking down the store aisle moving back toward the counter. His arms are briefly outstretched with an incredulous expression on his face. The next cut shows officer Drake entering the store and speaking with an employee. Eventually, Officer Drake appears to ask Mr. Vann to leave the store, and Mr. Vann can be seen complying with his request and following Drake out of the store.

While Mr. Vann was speaking with Drake, officers Mitchell and Kester arrived. As Mr. Vann was exiting the front door, Mitchell stopped him in the doorway and can be seen making aggressive hand gestures towards Mr. Vann, who seems to remains calm. Eventually, Mitchell permits Mr. Vann to exit the store. (This is not seen in the edited EIE video. It is noted in the complaint.) But, after exiting the store and beginning to walk away, the officers say something to Mr. Vann and he turns around to face them. Without apparent warning, officer Steven Mitchell and officer Jeffrey Kester grab Mr. Vann, put his hands behind his back and handcuff him. After handcuffing his right hand, the officers jerk his right arm up, and Kester then pulls Mr. Vann by the head and neck toward the ground while Mitchell and Drake push him from behind. As a result of Kester, Mitchell, and Drake’s actions, Kester falls to the ground and pulls Mr. Vann and Mitchell down on top of him; Kester’s leg is allegedly broken and he is unable to get up off the ground.

David Vann is now handcuffed, prone, and helpless on the ground. Mitchell can be seen striking Mr. Vann in the head and searching his person. Mitchell then jerks Mr. Vann to his feet and walks him to the police car. With Mr. Vann’s arms handcuffed behind him, Mitchell pushes him against the police car then slings him around in the opposite direction and executes a haymaker-style punch hitting Mr. Vann square across the jaw. Drake runs over to join Mitchell in assaulting Mr. Vann. Mitchell and Drake then body slam Mr. Vann onto the ground for no apparent reason (although in their paperwork and at trial they claimed that Mr. Vann had escaped from his handcuffs to they had to take him down to reapply the handcuffs). As a result of Mitchell and Drake’s actions in body slamming Mr. Vann onto the ground, Drake allegedly dislocates his shoulder. He sits down on the sidewalk, unable to move his arm. Meanwhile, with Mr. Vann still handcuffed, Mitchell punches him in the head, slams him on the ground, and, uses pepper spray inches from his face on both sides. At the criminal trial of this matter, Drake testified that it is against RPD policy to utilize pepper spray from a distance of less than seven feet.

Other officers arrive at the scene and three of them hold the unresponsive Mr. Vann on the ground while Mitchell searches him (again). The officers then haul Mr. Vann—apparently unconscious at this point—to his feet and carry him to the rear driver’s side of a patrol car. In a sickening display of torture, Mitchell pulls Mr. Vann’s arms up over his head (still handcuffed behind him)—"hyperextending his shoulders”—for at least 60 seconds until the video cuts out. Two paramedics look briefly toward the torture being inflicted on Mr. Vann but keep moving forward and assist officer Kester. The other officers on scene fail to intervene against the unjustified use of force being inflicted upon Mr. Vann.

According to the complaint, Mr. Vann was then placed in the back of officer Mitchell’s car where paramedics eventually treated him and informed the officers that Mr. Vann needed to go to the hospital. The police officers, named and unnamed in the complaint, refused to take Mr. Vann to the hospital or allow the paramedics to take him.

Instead, Mr. Vann was transported to the Monroe County Jail where officer Mitchell and officer David Kephart (along with several unidentified RPD officers) “removed [David] from the RPD vehicle, threw him on the ground, and punched and kicked him about his head and body numerous times.” The complaint also alleges that officers Mitchell and Kephart told the jail staff that Mr. Vann had “assaulted Kester causing him to break his leg, and assaulted Drake causing him to separate is shoulder” and further, to “deny Mr. Vann needed medical treatment in retaliation” for Kester and Drake’s injuries. Mr. Vann was denied medical treatment and placed in solitary confinement for nearly a month. His mother Diana Vann and sister Toya tried to visit him and were turned away each time. He was denied communication with his family. After nearly a month had passed, the complaint states that he was “transferred to another facility, where he was detained against his will for approximately four months.”

Diana Vann posted bail for her son and he was finally released in February 2016.

The cover-up

The complaint alleges a cover-up where evidence was manufactured or discarded, statements were coerced, and officers “testil[ied]” to “nullify constitutional deficiencies in their reasons for making arrests and using force against arrestees.”

After Mr. Vann’s arrest, investigator Tomesha Angelo and technician Stephanie Mintz (along with several other unidentified officers) reviewed the store’s surveillance camera footage and “failed to collect, copy and preserve” footage that vindicated Mr. Vann’s narrative of the facts. Angelo, according to the complaint, was the “case coordinator.” The complaint points out that both the investigator and the technician should have known that the video footage prior to “time stamp ’09-04-2015 11:35:00’” constituted Brady material (where the United States Supreme Court held that the prosecution must turn over any evidence favorable to the defendant) and should have been preserved. Instead, the video was discarded. Angelo’s supervisor, sergeant Daniel Zimmerman, should also have been aware of the pertinent laws and procedures. Instead of ordering Angelo and Mintz to retrieve the video prior to the time stamp, Zimmerman “reviewed and approved” of Angelo’s decisions as case coordinator.

The videos (the edited Enough Is Enough version and the full length surveillance camera videos) show witnesses at the scene. As investigator Angelo and technician Mintz were not collecting pertinent video evidence, unidentified officers and officer David Kephart “detained numerous witnesses at the scene—including D.A., D.M., A.M. and others.” The complaint doesn’t spell out the names of witnesses; it only offers their initials. Officers demanded IDs from all of the detained witnesses and then ran criminal background checks on the individuals. The complaint alleges that officers were fishing for criminal histories that the police could use to threaten and coerce witnesses to sign false statements of what they saw.

D.M.’s background check revealed that he was on parole, that a condition of his parole was that he had an 8:00 p.m. curfew, and that he was violating that parole condition by being out of his residence at the time of the incident. Unidentified officers, Mitchell, and Kephart “threatened that D.M. would be arrested for violating his parole unless he sign[ed] the false Supporting Deposition.” D.M. signed the statement, drafted by Kephart, which contained the following false statements:

a.     The officers told Mr. Vann he was not welcome at the store and gave him a chance to leave the location;

b.     Mr. Vann “[got] in one of the officer’s faces, approximately 3-5 inches from the officer.”

c.     Mr. Vann stood in front of the store and refused officers’ orders to leave;

d.     “[Mr. Vann] began to sway when the officers tried to place [him] in handcuffs. The officers then took [Mr. Vann] to the ground. One of the officers appeared to be injured once [Mr. Vann] was brought to the ground he just laid there on his back while two other officers proceeded to handcuff [Mr. Vann].”

e.     “The two officers then leaned [Mr. Vann] up against a police car. The male pushed backwards causing the skinny officer to take the male to the ground.”

f.      “The male repeatedly ignored commands by the police to stop resisting. The police commanded him to do so multiple times.”

The complaint alleges that D.M. knowingly signed a false statement under duress from the police who were threatening him with arrest for his violation of curfew.

Another witness, D.A., was also coerced into signing a statement. The complaint alleges that after running a criminal check, police observed that D.A. had an open criminal case and threatened him if he didn’t sign the statement prepared by investigator Angelo. The statement contained the following false statements:

a.     Mr. Vann entered the store and attempted to purchase beer without an ID;

b.     Mr. Vann refused to leave the store;

c.     When the cops arrived, “[Mr. Vann] was standing just inside our front door refusing to leave. The cops were real nice and tried to get him to leave. [Mr. Vann] got in one officers [sic] face. The officer warned him but he went after the officers again. The officers went to handcuff him and he began to fight the officers. He was thrashing and refused to keep his hands behind his back. The officers yelled over and over, ‘stop resisting! Put your hands behind your back!’ The guy continued to fight. He was fighting so bad he caused everyone to fall to the sidewalk. The guy fell on one officer, hurting the officer’s ankle. Another officer got him handcuffed and walked him to a cop car. He tried to search the guy but he just wouldn’t stop fighting, even in handcuffs. Another cop arrived and that made the guy fight and resist more. They fought so much they ended back up on the sidewalk near the store. That’s when the second officer got hurt.”

d.     “Like 5 more officers showed up. They were all yelling commands to him but he was still fighting. He was even fighting once he was in the back of the car, that’s when they threatened to spray him.”

e.     “I’m so thankful the officers came. I do not feel they were inappropriate whatsoever.”

The complaint alleges that D.A. knowingly signed a false statement, prepared by the police, under duress from the police in contradiction to the surveillance camera footage.

In the case of A.M., he had no prior or current criminal record that the police could use to coerce him to sign a fabricated statement. Instead, the police simply refused to take a statement from him in violation of RPD General Order 401. Sergeant Zimmerman, investigator Angelo’s supervisor, not only approved of the false signed statements, but of not collecting a witness statement from A.M.

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Sgt. Daniel J. Zimmerman & Inv. Tomesha Angelo

A third element of the cover-up comes in the form of falsified police records and documents. Specifically, the complaint points to the felony complaints signed by officers Kester and Drake and drafted by investigator Angelo. The false statements below were found in the felony complaints:

a.     Mr. Vann “intentionally refuse[d] to put his hands behind his back” when the officers arrested him;

b.     Mr. Vann “twisted, turned, pulled away and thrashed around in a violent manner causing the defendant and three police officers to fall to the sidewalk”;

c.     Mr. Vann’s actions caused him to fall “on top of Officer Jeffrey Kester, breaking his right fibula bone”;

d.     Mr. Vann “continued to resist officers’ lawful arrest by continuing to twist and pull away”; and

e.     Mr. Vann “forced the officers to bring him to the sidewalk to get him under control” causing DRAKE [sic] to dislocate his right shoulder.

The surveillance camera footage appears to contradict the false statements filed by the officers in their felony complaints, yet none of the officers were disciplined for signing the false felony complaints.

Investigator Angelo signed a felony complaint, after reviewing the store surveillance camera footage, that Mr. Vann “refuse[d] the leave the A&Z South Market after being asked by the store employee … multiple times. The defendant then became combative forcing [D.A.] to physically remove the defendant by pushing him out the door.” Angelo’s complaint led to Mr. Vann being charged with misdemeanor assault in the third degree for allegedly assaulting the store clerk and a trespass violation for allegedly not leaving when asked. The complaint alleges that Angelo failed to collect video surveillance footage that would have vindicated Mr. Vann’s narrative of events. Angelo signed a statement saying that she knew about the incident through “personal knowledge” even though she was not present during the incident. Her knowledge, the complaint alleges, came from watching the store’s surveillance camera footage and reading the coerced statements of D.A. and D.M. Again, sergeant Zimmerman, investigator Angelo’s supervisor, approved of her decisions.

Officer Mitchell, the complaint alleges, “drafted an incident report that contained a fabricated narrative” that accused Mr. Vann of crimes he did not commit. Specifically, the statements in the incident report that are false include:

a.     D.A., “an employee of the store … stated that [Mr. Vann] entered the store and wanted to buy beer” but that Mr. Vann “did not have identification” so D.A. refused to sell him beer;

b.     D.A. “told [Mr. Vann] to leave the location several times, but [he] remained in the store for approximately 45 minutes;

c.     Mr. Vann “told me that he did not have to leave the store and argued with me.”

d.     That Mr. Vann “almost bumped into Officer Kester” when he existed the store to the sidewalk;

e.     That Mr. Vann “did stop at the side walk,” and then “turn[ed] towards officers and [D.A.] and began to argue with [D.A.] again”;

f.      That, “as I began to handcuff [Mr. Vann, he] refused to keep his right arm behind his back and pulled it away from officers. This action forced officers to bring [Mr. Vann] to the ground for stabilization, where [Mr. Vann] was handcuffed.”

g.     “As [Mr. Vann] was brought to my patrol vehicle, he immediately pulled away from me. [DRAKE] [sic] ran over to assist me in controlling [Mr. Vann]. [Mr. Vann] was told multiple times to get on the ground and would not comply. [Mr. Vann] was thrashing and pulling his body away from officers. The actions of [Mr. Vann] once again forced [DRAKE] [sic] and I to bring [Mr. Vann] to the ground.”

h.     Once on the ground, “[Mr. Vann] continued to roll around on the ground and reached with his hands in the area of his waistband … and I did fear that [Mr. Vann] had a weapon on his person.”

The complaint alleges that the above statements were false based upon review of the surveillance camera footage and yet the officers moved forward with the filings. This led to the malicious prosecution of Mr. Vann based on the “City and RPD’s policy, practice and custom of manufacturing false evidence and ‘testilying’ to nullify constitutional deficiencies in their reasons for making arrests and using force against arrestees.”

Failing to secure evidence, coercing witness statements, and falsifying police reports are the foundational elements of the cover-up. How these documents and the officers’ falsified testimony were used constitutes the second half of the cover-up. Mr. Vann was held in Monroe County Jail while the officers testified to the grand jury in an effort to secure an indictment against Mr. Vann “on two counts of assaulting a police officer.” The assault charge against the clerk and the trespassing charge were dismissed before the officers testified at the grand jury.

Officer Mitchell, according to the complaint, falsely testified to the grand jury that:

a.     Mr. Vann entered the store and attempted to purchase beer without an ID;

b.     Mr. Vann became upset and refused to leave the store when they refused to sell him beer because he did not have an ID on him;

c.     When MITCHELL [sic] informed Mr. Vann he had to leave the store he refused and stated “it’s a free country”;

d.     After several minutes, “he finally started to walk out the door” but then he “turned back around” and “be[gan] to walk back towards the store, and balled—he actually balled his fists up as he turned toward the officers. And he yelled out something, I can’t remember exactly what it was.”

e.     While attempting to handcuff Mr. Vann, he pulled his right hand forward to the front of his body, preventing them from securing the handcuff on his right wrist;

f.      The officers had to bring Mr. Vann to the ground to complete handcuffing Mr. Vann;

g.     The officers did not finish handcuffing Mr. Vann until he was on the ground;

h.     MITCHELL [sic] was not able to search Mr. Vann where he was first brought to the ground;

i.      After he was first brought to the ground, Mr. Vann “had been reaching for part of his waistband”;

j.      Mitchell brought Mr. Vann to the patrol vehicle to try and complete searching him, but “he bumped his chest off the patrol vehicle” causing MITCHELL [sic] to lose control of him;

k.     Mr. Vann then stood in front of him “and kind of came at me”;

l.      “[Mr. Vann] was told to get on the ground,” but he refused, so DRAKE [sic] and MITCHELL [sic] brought him to the ground again;

m.   After Mr. Vann was brought to the ground the second time, Mr. Vann reached for the same spot on his rear waistband area one or two times, which was the same spot he’d reached for previously. At this time, MITCHELL [sic] still had not searched Mr. Vann;

n.     MITCHELL [sic] pepper sprayed Mr. Vann because he refused to stop reaching for his waistband.

The complaint alleges that Mitchell’s testimony to the grand jury was false based on surveillance camera footage. His partner, officer Drake also testified:

a. Defendants did not handcuff Mr. Vann until he was taken to the ground the first time;

b. Then, “as Officer Mitchell is taking the suspect to the vehicle, somehow there’s another altercation and the subject is not wearing two handcuffs, so I go back there to effect that arrest. Again, we have to re-handcuff the defendant.”

The complaint alleges that Drake’s testimony is false based upon the surveillance camera footage. Kester testified that Mr. Vann had caused “him to break his leg.” The video demonstrates that claim is false, as it was actually the actions of Kester, Mitchell and Drake that caused Kester to break his leg. Because of the false testimony offered to the grand jury by the officers, Mr. Vann was charged with two counts of felony assault against a police officer and “maliciously prosecuted for over 17 months, and was forced to endure a three-day trial on serious felony charges for crimes he did not commit.”

The officers also gave false testimony at Mr. Vann’s criminal trial. The complaint points out that the initial written statements regarding the incident were inconsistent with their grand jury testimony as well as their criminal trial testimony. Officer Kester falsely testified at trial that:

a.     When he arrived on the scene, Mr. Vann was actively arguing with Rafiq and/or D.A.;

b.     Mr. Vann was pacing back and forth and ignoring the officers;

c.     Mr. Vann actively resisted arrest, by, for example, attempting to bring his hands to the front of his body to avoid being handcuffed;

d.     As KESTER [sic] and MITCHELL [sic] were handcuffing Mr. Vann, KESTER [sic] told Mr. Vann to relax, but instead he tensed up even more and “ball[ed] his fist up and [brought] his arm closer into his body”;

e.     KESTER [sic] and MITCHELL [sic] were unable to secure handcuffs upon Mr. Vann’s wrists while they were standing;

f.      KESTER [sic] stated to MITCHELL [sic] and DRAKE [sic] that they had to bring Mr. Vann to the ground in order to secure the handcuffs on his wrists;

g.     The handcuffs were not secured upon Mr. Vann’s wrists until the officers brought him to the ground.

Officer Mitchell falsely testified at trial that:

a.     He told Mr. Vann to leave the store multiple times, but Mr. Vann refused;

b.     In response to telling Mr. Vann that he needed to leave the store, Mr. Vann replied, ‘it’s a free country” and that he did not have to leave the store;

c.     He and KESTER [sic] were unable to handcuff Mr. Vann’s right hand because Mr. Vann was “trying to move his arm forward.”

d.     That he did not secure the handcuff on Mr. Vann’s right hand until after they brought him to the ground;

e.     After they brought Mr. Vann to the ground, he was unable to search him because Mr. Vann “reached for the right side of his pants pocket or pants waistband.”

f.      He feared that Mr. Vann had a weapon in his back right pocket or waistband;

g.     After he brought Mr. Vann to the car, Mr. Vann “kind of bumped off the car [and] he pulled away from me. I told him to get on the ground several times, and he did not.”

h.     When Mr. Vann refused to go to the ground, MITCHELL [sic] used a “distractionary [sic] technique” that “was a jab with my right hand”;

i.      MITCHELL [sic] pepper sprayed Mr. Vann from a distance of one to two feet;

j.      After MITCHELL [sic] pepper sprayed Mr. Vann, he again reached for his right waistband area, which MITCHELL [sic] had not yet searched.

The complaint alleges that the statements made above by officer Mitchell were false and are contradicted by surveillance camera footage.

Officer Drake testified at the trial that:

a.     After Mr. Vann walked out of the store onto the sidewalk, he chose not to disperse from the area;

b.     Mr. Vann actively resisted arrest;

c.     Mr. Vann resisted being handcuffed by moving / turning his body;

d.     Before DRAKE [sic] and MITCHELL [sic] took Mr. Vann to the ground the second time, MITCHELL [sic] told him Mr. Vann slipped out of one of his cuffs and was reaching for his waistband;

e.     DRAKE [sic] and MITCHELL [sic] took Mr. Vann to the ground the second time in an attempt to re-handcuff hm.

Officer Drake’s testimony to the jury, according to the complaint, was false and contradicted the store’s surveillance camera footage.

The last element in the cover-up alleged in the complaint has to do with a “longstanding, entrenched policy, pattern and custom of deliberate indifference to RPD officers’ use of excessive force.” Essentially, the City of Rochester has known, for decades, about officers’ bad behaviors and failed to intervene and discipline officers to prevent them from using excessive force in the future, and/or prevent them from lying in their paperwork and testimony about the reasons force was used. A report issued jointly by Enough Is Enough and the Rochester Coalition for Police Reform in February 2017 titled The Case for an Independent Police Accountability System: Transforming the Civilian Review Process in Rochester, New York looked at 15 years of data from both the Professional Standards Section (police internal affairs) and the Civilian Review Board. According to the PSS annual reports, the report found that of the nearly 1,200 civilian-generated use of force allegations against RPD officers, 5% were sustained by the Civilian Review Board, 3% were sustained by the Professional Standards Section, and the Chief of Police, who has final discretion over all complaints, sustained only 2% of allegations. That’s literally 23 allegations of excessive use of force sustained over 15 years by the Chief. Of those 23, only 13 led to discipline, the harshest form of which were suspensions. The Rochester Police Department does not hold its officers accountable for their misconduct. (The percentages remain the same (the numbers are different) up to 2016 according to annual reports from the CRB and PSS. Of course, both the CRB and the PSS are supposed to be looking at the same numbers according to the CRB ordinance passed in 1992. New 2017 annual reports from both the CRB and PSS have not been issued as of this writing.)

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Infographic breaking down the proposed Police Accountability Board

In Mr. Vann’s case, Mitchell was identified in the complaint as a “municipal policymaker” because of his roles as a Field Training Officer (who train new recruits who just graduated from the police academy on police policy and procedure in the field) and a Defensive Tactics Instructor (who teach new recruits at the academy everything from handcuffing to when it’s appropriate to use force and what level of force). The complaint alleges that Mitchell is a “municipal policymaker with respect to the RPD’s use of force and training” and because of his role as a "policymaker," and the fact that he was not disciplined in any way for the abuse leveled against Mr. Vann, the city is condoning his bad actions as well as his techniques to train new officers. The complaint further alleges that Mitchell, Drake, and Kester should have been investigated and disciplined for their “use of force and/or failure to intervene to stop or prevent the unlawful use of force against Mr. Vann” because the officers “admit to using force against Mr. Vann; because Mr. Vann was acquitted by the jury, and because the security camera video recovered from the store on the night of the incident clearly demonstrates that the officers fabricated their account of their interaction with Mr. Vann in their arrest and charging paperwork, and testified falsely at the grand jury and petit jury.”

One is left to wonder why Monroe County District Attorney Sandra Doorley doesn’t hold these officers accountable and bring criminal charges against them not only for the horrifying abuse they inflicted on Mr. Vann but also for their clear perjury at the grand jury and at the criminal trial. In the ongoing everyday injustices in Rochester’s criminal justice system, plenty of attorneys know that police lie on the stand and they also know that there is zero accountability for their violations of the law. The District Attorney’s refusal to prosecute officers for their criminal acts is a key element to why the RPD continues to violate civilians’ rights with impunity.

Mr. Vann’s criminal trial

On Tuesday, February 14, 2017, David Vann went on trial for two felony counts of assaulting an officer. He had been offered five years of probation by Monroe County Assistant District Attorney (ADA) Michael Harrigan, but he knew he was innocent, so he refused the offer. In his criminal case, Mr. Vann was represented by Michael Doran of the Monroe County Public Defender’s Office. Supreme Court Judge Melchor Castro presided over the three-day trial. Twelve jurors were selected on the first day: six white women, two Black women, one Latina woman, and three white men.

The opening statement by Harrigan on Wednesday revealed that the DA’s argument was going to be that the police officers were engaged in their lawful duty to arrest Mr. Vann, and in the course of this effort they were injured. The law states that if an officer is injured while engaged in lawful duty, the person who caused that injury may be charged with assault on an officer, even if the person did not actively assault the officer.

Assistant Public Defender (APD) Doran’s opening argument was that the video showed what actually happened and that the jury should listen to what the witnesses were saying and compare it with what they actually saw on the video. Mr. Doran told the jury that Mr. Vann was innocent until proven guilty and that the DA would be unable to prove beyond a reasonable doubt that Mr. Vann caused the officers’ injuries.

ADA Harrigan called seven witnesses over the next two days: two video technicians, three police officers, the store clerk, and a store customer. The RPD’s video technician, defendant Stephanie Mintz, testified that she retrieved the only the portion of the store’s video surveillance recording that defendant investigator Tomesha Angelo told her to collect. Angelo instructed Mintz not to collect the video from the beginning of the incident. Thus, the video that was produced by the RPD to the District Attorney’s Office, which was later played by the ADA at Mr. Vann’s criminal trial, did not include the portion of the incident prior to the police arriving, including the conversation between Mr. Vann and Algazali or the section where Mr. Vann is pushed out of the store by Algazali. The DVD also did not include the end of the encounter with Mr. Vann; it ends with Mitchell holding Mr. Vann’s arms above his head behind his back, his hands still handcuffed together, for nearly a minute.

All three police officers involved in the incident testified: Kester, Mitchell, and Drake. They stated that Mr. Vann was argumentative; the video shows him calm. The officers stated that Mr. Vann was trespassing; the video shows him voluntarily leaving the store. The officers stated the reason they took Mr. Vann down was because he was resisting and wouldn’t let them get the handcuff on his right wrist; the video shows that Mr. Vann was fully handcuffed on both wrists prior to the officers deliberately pulling Mr. Vann’s arm up at an awkward angle after putting on the handcuffs, then officer Kester grabbing him around his neck and pulling him to the ground.

Mitchell testified that when he picked Mr. Vann up (after Kester allegedly broke his leg) and walked him over to stand against the police car, Mr. Vann pushed himself off the car and resisted him; the video shows that Mr. Vann did not push off the car or resist Mitchell in any way. Instead, the video shows Mitchell attempt to throw Mr. Vann on the ground, spin him around, then haymaker-punch him in the face.

Drake testified that he ran over to help Mitchell who informed him that Mr. Vann had slipped out of one of his handcuffs, and so they had to throw him onto the ground to rehandcuff him. However, the video shows both of Mr. Vann’s hands clearly handcuffed behind his back. Mitchell said he gave Mr. Vann a “jab” to “distract” him; the video shows Mitchell delivering a haymaker punch to Mr. Vann’s head.

The store clerk and store customer did not add much to the case either way. The ADA’s closing statement focused on how badly the officers were hurt and how they were justified in their actions because Mr. Vann was fighting them; he “caused” their injuries. The APD reminded the jury to look closely at the video, ask to see it, and stop it at significant moments. Judge Castro gave instructions to the jury that emphasized the parts of the law most favorable to the ADA’s case.

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This image & related video of Mr. Vann handcuffed is one the jury kept reviewing

The jury deliberated for about two hours. Three times they asked to view the video, especially the part where Vann is being handcuffed. In the end, the video carried the day, and they acquitted Mr. Vann based on the fact that he was handcuffed before the officers brought him to the ground and did not resist arrest in any way. The jury trusted their eyes, they asserted their right to see what happened for themselves and to make the judgement that ADA Harrigan had not proven his case. David Vann was declared NOT GUILTY by the jury on February 16, 2017!

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David Vann Circa Feb. 2017 after he was found NOT GUILTY

Mr. Vann is now suing the city in federal court for damages directly stemming from the unlawful police assault against him: “physical pain, permanent physical injuries, mental injuries, emotional distress, embarrassment, humiliation, lost income, loss of liberty, and deprivation of his common law and constitutional rights.”

Rochester needs a Police Accountability Board now

Since February 2017, activists have pushed with renewed vigor to force the passage of legislation that has been demanded for well over a half century in Rochester, NY. Police violence plagues Rochester and a true Police Accountability Board (PAB) is one answer to the problem: put the power in the hands of the community.

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The campaign to pass the Police Accountability Board is over a year old

The PAB would be an independent agency of city government separate from the Rochester Police Department. The PAB would be composed of 11 members: one Mayoral appointment, four City Council appointments, and six community appointments. All appointees must be city residents; they would serve staggered three-year terms; and the PAB would represent Rochester’s diversity. The Police Accountability Board Alliance is the community mechanism that would vet and propose potential PAB members. The PAB would have a civilian agency attached to it that would conduct parallel and independent investigations from the RPD of allegations of police misconduct. The agency would have subpoena power. After their investigation, the PAB would determine if there was enough cause to proceed to a hearing. The hearing panel, composed of three members of the PAB, would review the investigation and be able to conduct further investigation. If they find that there was police misconduct, the panel using a disciplinary matrix, would issue recommended discipline.

The disciplinary matrix is a predictive, consistent, progressive tool that can be used by the PAB to determine discipline. It would have buy-in from the community, the City, the RPD, and the police union. It would give a clear indication of what officers could expect for their misconduct and could be issued publicly increasing departmental transparency. Currently, the Chief has sole discretion over discipline. A disciplinary matrix would be a way to undercut favoritism as well increase fairness of the disciplinary process for rank and file officers. (This mechanism was developed from the academic work of a former Newark, New Jersey police commander.)

Should the Chief of Police accept the PAB’s recommendations and implement the discipline, the complaint process ends. If the Chief disagrees, then he would be required by the law to send a letter explaining in detail his objections and rationale. The PAB could accept or deny the Chief’s explanation. If they denied the Chief’s reasoning, then they would have the legal power to force the Chief to impose the discipline.

The police cannot police themselves. History informs us (see THE ROCHESTER POLICE ADVISORY BOARD: A COMMUNITY RESPONSE TO RACIAL UNREST (Oct. 1967); Final Report of the Citizen's Committee on Police Affairs (1976); PATHWAYS TO BETTER POLICE-COMMUNITY RELATIONS IN ROCHESTER (2004); Public Safety Chair says "The City of Rochester has lost control of its police force." (June 2011); A Brief On The Proposal for a Civilian Review Board for the City of Rochester Police Department (May 2014) and The Case for an Independent Police Accountability System: Transforming the Civilian Review Process in Rochester, New York (Feb. 2017)) that the Chief rarely uses his disciplinary power. Over the 15 years studied, not one officer was fired for a sustained complaint of use of force against a civilian. It’s time to put a 50+ year demand into action. Nothing legally prevents the Police Accountability Board from being established by Rochester City Council. The collective bargaining agreement between the city and the police union (including the Taylor Law) cannot be used as obstructions to the legal establishment of a PAB, according to two New York State Court of Appeals cases: Patrolmen's Benevolent Assn. v. New York State PERB, 6 N.Y. 3d 563 (2006) and City of Schenectady v. New York State PERB, 30 N.Y. 3d 109 (2017).

The PAB would not have to be under the control of the Mayor and would not require a referendum to pass the proposed ordinance. The only thing that is needed is the political fortitude of our City Councilors (council@cityofrochester.gov or (585) 428-7538) to pass the proposed Police Accountability Board ordinance NOW!

According to attorney Dolby-Shields, Mr. Vann’s complaint has been filed and the City just filed a motion attempting to dismiss some of Mr. Vann’s claims, or alternatively, requesting the Court order the plaintiff to file a new complaint, removing some of the most damning allegations.

Aside from Drake, Mitchell, Kester, and the City of Rochester, officers Christopher J. Barber and David E. Kephart; investigator Tomesha Angelo; technician Stephanie Mintz; Sergeant Daniel J. Zimmerman; and police officer John Does 1-6 and 7-12 are also named as defendants.

Enough is Enough.

Raw A&Z Market Suveillance Camera Footage: