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Proving liability? Ethnic bias? A local attorney looks at civil case in Rivera death by police

HoganWillig Attorneys at Law

Late last week, the family of a man fatally shot during a Buffalo police pursuit last year filed a civil lawsuit against the City of Buffalo, its Police Department and the officers involved. The suit, in addition to claiming denial of civil rights and negligence, includes allegations of ethnic bias by the officers who pursued and shot Rafael "Pito" Rivera. WBFO asked a local attorney to look at the civil case filed on behalf of Rivera's family.

Rivera was shot while being pursued by officers on Plymouth Avenue in September 2018. Three months later, Erie County District Attorney John Flynn announced he would not pursue criminal charges in the matter, suggesting the video evidence showed Buffalo Police officers were justified in the use of deadly force.

On the anniversary of the death, attorney Steven Cohen filed a lawsuit on behalf of Rivera's estate. It names the City of Buffalo, Buffalo Police Department, Karadshaev and a fellow officer identified only as John Doe as defendants.  It alleges wrongful death, violation of civil rights and other claims including negligent training and supervision.

It also alleges ethnic bias in the shooting and in how officers reacted after Rivera was wounded. Officer Karadshaev is Caucasian, while Rivera was Puerto Rican.

WBFO, seeking an outsider's legal analysis in this case, contacted attorney John Elmore and asked him to look over the complaint. On the question of ethnic bias, he spoke of the difficulty proving its presence.

"It would seem to me, just the fact that the race of the defendant is different from the race of the police officer alone is insignificant. There'd have to be some additional facts such as racial slurs or a past history of racial discrimination or things in that officer's personnel file that show that the officer was racially bigoted," Elmore replied.

The challenge, as he sees it, will be to determine the officer's state of mind.

"Mr. Cohen, who is representing the estate of the deceased, has to prove that this officer did not have a reasonable basis to believe that his life was in danger, or that the life of another person was in danger," he said. "State of mind is a very difficult hurdle to prove."

But the advantage of trying the case in a civil court is there are fewer jurors to convince. Only six will be seated, compared to the twelve that are in place for a criminal trial. The burden of proof is also less severe in civil cases, as Elmore explained. In criminal cases, it's proof beyond a reasonable doubt. Not so much, in a civil matter.

"It's proof beyond a preponderance of evidence," Elmore said. "That means more likely than not. If you were to look at the scales of justice being balanced, if they're just tipped one way in favor of the plaintiff, then that's more likely than not. The standard is much lower to get liability in a civil case than it is to get a conviction in a criminal case."

Michael Mroziak is an experienced, award-winning reporter whose career includes work in broadcast and print media. When he joined the WBFO news staff in April 2015, it was a return to both the radio station and to Horizons Plaza.
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