James Kistner was having breakfast with his sons at his Buffalo East Side home on New Year’s Day 2017 when he noticed police at his apartment across the street.

They finished breakfast before Kistner walked outside to find out what might have caused the police presence at the apartment on Schmarbeck Avenue.

Kistner walks a few feet toward a second police cruiser that begins to back up. He gets within a foot and he throws out his arms to brace for what was about to happen: the cruiser runs into him, forcibly knocking him to the ground. No one moves. None of the officers run to check on Kistner. More than 15 seconds pass before officers get out and walk toward Kistner, who is lying on the ground yelling at his son to call 911.

Earl, Kistner’s son, runs over, sees that his dad is on the ground with his legs pushed out between the two wheels of the left side of the SUV and then walks back to the sidewalk to call 911.

Not only was Kistner struck by a police SUV and injured, but officers surrounding Kistner’s son while he called 911, shoved him around and took his phone. Police cancelled the ambulance call. An officer picks up Kistner off the ground, they cuff him and detain him in the second police cruiser that returned to the scene. Police charged Kistner with felony criminal mischief and a disorderly conduct violation.

Officers transported Kistner to ECMC, where they chained him to a gurney, and left to speak with medical staff. The officers tried to get Kistner admitted in the psych ward at ECMC, claiming he attacked the police cruiser. Kistner said the nurse told him that the officers claimed he jumped onto the police cruiser. ECMC did not admit Kistner, so police brought him to central booking where he was fingerprinted, searched and photographed. He was charged with felony criminal mischief in the third degree for the damage to the mirror and disorderly conduct.

Kistner thought he would get an appearance ticket for some violation, but the officers would eventually bring him back to ECMC to try to get him admitted a second time. Kistner again denied to a doctor that he attacked a police car and said he has video to prove it. The doctor called a family friend of the Kistners, who confirmed that the video shows Kistner being struck by the police car.

Less than an hour later, ECMC nurses told Kistner he was free to leave.

Kistner’s attorney said the officers conspired to cover up the incident to avoid discipline for hitting Kistner with a police cruiser.

Outcome

Prosecutors dismissed the charges against Kistner once they saw the video evidence.

Kistner’s attorney said as far as he knows the officers were never disciplined.

Kistner said he filed a complaint with internal affairs but was ignored. So, he decided to sue the City of Buffalo, the police commissioner and police officers Lauren McDermott, Jenny Velez, Karl Schultz, Kyle Moriarty and David T. Santana. Pending Common Council approval, James and Earl Kistner will be receiving $1,100,000 as a result of the settlement from the lawsuit.