Surveillance video shows the man fatally shot by police early Wednesday was running from a Buffalo police officer in the moments leading up to his death.
The video shows Rafael “Pito” Rivera run down a sidewalk, trip, crawl for a few feet and get back up before he was shot.
The lawyer for Rivera’s family, Steven Cohen, showed the video to The Buffalo News and two other local media outlets Saturday.
The district attorney's office and police investigators have the hard drive with the original video, Cohen said.
Police have said Rivera, 32, was holding a handgun and had refused multiple demands to drop it when he was shot. They have said they recovered a handgun from the scene.
It is not clear from the video shown to reporters Saturday whether Rivera was holding a gun. A law enforcement source said that when the original video is enlarged the weapon can be seen flying from Rivera's hand when he is shot.
Cohen said that he cannot tell from the video whether Rivera was armed. “I am not clear on that,” Cohen said Saturday. “I didn’t see one in the video.”
The attorney would not give copies of his video to the media, saying the family did not want it made public, but they agreed to let him show it to The News, Investigative Post and Spectrum News.
Two muzzle flashes
The video Cohen showed to reporters at his offices in Amherst on Saturday was in color and appeared to be from a surveillance camera mounted on the front of the school building facing out toward Plymouth. A driveway into the property’s parking lot and the northern part of the parking lot are visible. The area appears to be well-lit. There was no audio.
The video begins at 3:13 a.m., according to a time stamp on the footage. There is no activity in the area at first. Then at 3:14 and 11 seconds, a man dressed in a red sweatshirt, dark pants and white or light-colored shoes appears from the right side of the screen. He is running down the sidewalk closest to School 77. The man turns into the driveway of the property, then appears to trip over a curb and falls down.
The man crawls a few feet up the driveway, then gets up to his feet and takes a couple of steps to his right toward the parking lot.
At the same time, a uniformed police officer runs into view of the camera from the right. He is first in the street behind a parked car and then runs to the entrance of the driveway. A second uniformed police officer comes running from the right to the driveway.
The first officer, with both hands on his weapon, appears to fire twice at 3:14 and 19 seconds as the man in red is running toward the lot. Two muzzle flashes can be seen.
The man in red falls instantly to the ground. He is motionless. Two more police officers arrive at the scene and they surround the man on the ground. More police continue to arrive. Some get on the ground and appear to handcuff him. Others shine flashlights on the man and around the area. Five minutes after the shooting, an ambulance arrives on scene and paramedics are seen.
There doesn’t appear to be any first aid given.
Police have identified the officer who fired the shots as Elnur Karadshaev, who has been with the department two years. He is on administrative leave during the investigation.
Authorities obtained the video using a grand jury subpoena, said Erie County District Attorney John Flynn. "I cannot comment on the video until the investigation is completed, and we cannot release the video at this time because it was obtained through a grand jury subpoena," Flynn said.
Thomas H. Burton, the attorney representing the police officer, said he has not seen the video but it was his "understanding that a shiny object was in Mr. Rivera’s hand when he was shot and you can see it falling out of his hand to the ground."
A police source familiar with the case said their investigation of the original video shows that when the man falls to the ground the first time, he crawled to a sewer drain in the parking lot. “You can see him punching with his right hand to try to stuff the gun down the sewer drain,” the source said.
The same source said the gun is still in the man’s hand as he attempts to flee. When he’s shot, the source said, “You can see an object flying from his hand.”
Another law enforcement source said "when the video is enlarged you can see a gun fly from the individual's hand when he is shot."
The police source said video shows the officer was perpendicular to Rivera when he shot him.
Also, two police sources said that there’s an eyewitness to the police encounter. The person was in the parking lot of School 77 and told police he saw that Rivera appeared to have a gun and that he ducked between cars in the lot because he was afraid there would be shooting.
Rivera was shot three times. There's a graze wound to his forehead, one shot in his chest and one shot in the back, one of the law enforcement sources said. Rivera did not fire his weapon, the source said.
Deputy Commissioner Joseph A. Gramaglia gave this account of what happened on the morning of Sept. 12 later that afternoon:
Just after 3 a.m., police received a call about a man with a gun in the vicinity of Plymouth and Massachusetts.
An officer, later identified as Karadshaev, encountered a man with a gun, Gramaglia said.
The officer engaged in a foot pursuit about a half block down Plymouth Avenue ending in the parking lot of School 77.
“The suspect refused multiple requests by the officer to put the gun down,” Gramaglia said. “At that time, the officer discharged his service weapon to stop the immediate threat the suspect posed.”
An audio recording of radio calls from the scene seems to have an officer yelling: "Stop or I'm going to shoot you."
Another officer can then be heard saying “gray hoodie.”
A second later, the sounds of gunfire – possibly two shots – can be heard according to an archive of the radio transmissions posted on broadcastify.com.
Cohen questioned why the police officer fired on Rivera when he was running away.
“It would appear to me that he was shot at least twice in the back,” Cohen told reporters.
Burton said Karadshaev was “doing his duty as a police officer.”
“There is no duty for a police officer to be shot at first or even have a gun pointed at him before he reacts to defend himself,” Burton said. “In fact, the officer has a duty to go forward which a citizen does not. That’s why the police officer is given the benefit of the doubt in these circumstances.”
Burton said Rivera had a loaded semi-automatic pistol in his hand “with his finger on the trigger when he was shot.”