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Victim in BB gun trial points finger at Buffalo cop

On a rainy summer day nine years later, Donald J. Silmon sat in a downtown courtroom and recounted the night a Buffalo police officer grabbed him by the neck, choked him and slammed him head first onto the hood of a car.

It was a night, Silmon told a federal court jury Wednesday, that ended with another police officer shooting him in the leg with a BB gun, and a third officer punching him twice in the stomach.

Silmon, only 17 at the time, said the officers laughed about the incident.

On the first day of a civil rights trial involving two of the three officers, Silmon literally pointed the finger at Detective Raymond Krug and said he was the officer who intentionally shot him with a BB gun as he sat in the back of a police cruiser.

"He positioned it into his hand and fired it once," Silmon said of Krug.

"You were still handcuffed?" asked Assistant U.S. Attorney Aaron J. Mango.

"Yes," Silmon answered.

"Had you been talking back or swearing at him?" Mango asked.

"No," he said.

Silmon's testimony kicked off a civil rights trial that centers around allegations that Krug and Officer Joseph Wendel used excessive force against Silmon and three other teenagers that May night in 2009.

Wendel is accused of encouraging Krug to shoot Silmon a second time and of later punching him twice.

A third officer, retired lieutenant Gregory Kwiatkowski, has already admitted his role in the incident and will testify against Krug and Wendel.

"He grabbed me by the neck and choked me pretty hard," Silmon said of Kwiatkowski.

The lieutenant, according to Silmon, then asked him if enjoyed "shooting at white kids?"

Silmon, who is biracial, told the jury he quickly denied Kwiatkowski's suggestion that his involvement in an earlier BB gun shooting was racially motivated.

Kwiatkowski, Krug and Wendel are white.

"I said, 'I'm white myself. Why would I shoot at white kids,'" Silmon told the jury.

He said the shooting earlier that night took place when Jeffrey E. Campbell II, a friend he was driving with that night, suddenly pulled out a BB gun and shot into a crowd of college students gathered at Main and Custer streets.

"It was a dumb choice," Silmon told the jury.

The case before U.S. District Judge William M. Skretny is based on an incident nine years old, but the trial begins at a time when police shootings and police relations with African-Americans are in the headlines and on nightly newscasts.

Over the next several days, Mango and fellow prosecutor John D. Fabian will use the  civil rights trial in an attempt to prove that Krug shot Silmon and that Wendel egged him on.

"This case is not about the power they had," Mango said of the two officers. "It's about their complete failure to use that power responsibly."

Later, when referring to the BB gun shooting, he said, "At that moment, by making themselves judge and jury, the defendants abused the power they were given and violated the oath they took as police officers."

Defense attorney Terrence M. Connors countered by claiming Krug is innocent and will prove it during the trial.

"He didn't shoot Donald Silmon with a BB gun. He never shot anyone with a BB gun. It's not in his DNA," Connors said.

The defense is also expected to provide the jury with a different account of what happened that night in 2009.

The teens, they will tell the jury, were arrested after they fired the BB gun into the crowd at Main and Custer and hit at least one person.

The incident resulted in the four teens being charged with felony assault, reckless endangerment and criminal possession of a weapon, but pleading guilty to a lesser charge of harassment. They were each sentenced to a conditional discharge and community service.

"I choose not to call them victims," said Rodney O. Personius, a lawyer for Wendel. "They were charged that night with some very serious crimes. Make no mistake about it, they were very serious charges."

The defense is also expected to question Kwiatkowski's credibility by raising his history of  "disciplinary issues" and the three separate cases alleging improper conduct pending against him when he retired.

The criminal prosecution of Krug and Wendel came years after a civil case that Silmon and Campbell filed against the city.

Court records indicate Silmon received a $65,000 settlement while Campbell received $10,000. In the civil suit, Silmon said it was Krug who fired the BB gun and that Wendel was there, encouraging him to shoot again.

Krug and Wendel are currently suspended with pay. If convicted, they face up to 10 years in prison.



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