New York's highest court says swearing at the police does not justify the violation of disorderly conduct. Still, Nicholas H. Belsito was arrested, tackled, handcuffed and lowered into a patrol car with a broken nose and blood seeping from his face after cursing at an Erie County deputy.
At the time, Sheriff Timothy B. Howard's team was two months into a trial in which select deputies wore body cameras.
The body-camera video of Belsito's arrest, prior to a Bills game one year ago, worked in the defendant's favor.
"The assistant DA took one look at this video and dismissed everything," said Aaron F. Glazer, a lawyer now preparing a wrongful arrest lawsuit on Belsito's behalf. "I'm a former prosecutor and I don't like to take on cases against law enforcement. But this was just too egregious."
When Howard announced the body-camera trial in October 2017, he agreed the videos could help defendants, but he talked mostly about how they might expose false or exaggerated claims of police brutality. Now, his aides are tight-lipped about where the experiment stands. Officials said no decision has been made as they calculate the cost of putting cameras into widespread use. Howard did not ask the County Legislature for the money to do so in 2019.
Because there was video, Belsito's case did not come down to his word against the deputies. After an assistant district attorney saw the video, the counts of disorderly conduct, obstructing governmental administration and criminal mischief were dropped, a spokeswoman for the DA's Office confirmed. The video did not prove the charges, she said.
The action, on Dec. 3, 2017, begins with Belsito, 25 at the time, knocking on the passenger-side window of a sheriff's patrol vehicle. Belsito hopes the deputy in the passenger seat, Kenneth P. Achtyl, will talk to him. They are outside New Era Field, where tailgate parties are raging.
In the back seat is Belsito's friend, another University at Buffalo student. The student has just been arrested, reportedly for throwing a beer can that hit Achtyl's elbow. Belsito wants to ask where the deputies are taking him. He figures he will go retrieve him once he's released from custody.
Early in the video, Belsito is heard but not yet seen by the camera.
"I'm sorry," he says as Deputy Achtyl lowers his window, "I'm just wondering where you guys are going, so I'm going to meet my friend there ..."
"Who's your friend?" Achtyl says.
"The kid in the back.''
"OK, well, you want to go to jail with him?" Achtyl asks, his voice rising.
"No, I ..."
"Then beat it."
"No," Belsito says, as he tries again to learn where the deputies will take his friend.
"He's going to jail," Achtyl says. "Beat it."
"Can you tell me the location?" Belsito asks.
"Ten Delaware," the deputy tells him. "Now beat it."
Belsito, whose home is in the Hudson Valley, doesn't seem to know he's just been given the address of the Erie County Holding Center.
"No, what do you mean? Can you tell me the location?" he asks, his voice rising.
"Ten Delaware. Beat it."
Suddenly, Belsito seems to grasp that his question has been answered.
"OK. Thank you," he says.
He walks away, then turns to curse. While the body camera did not pick up his exact words, attorney Glazer says it was something like: "Do your (expletive) job. This is bull---."
Achtyl bolts from his seat. "Come here," he yells.
Deputy James W. Flowers remains behind the steering wheel. "Nah, ah, ah," Flowers says to his partner, but Achtyl doesn't return. So Flowers goes after them.
Because Flowers wore the body camera, 14 seconds pass before Belsito is in view of the lens again. By then, Achtyl has the larger Belsito in a bear hug from behind, right next to the patrol vehicle. Belsito isn't fighting, but he's not helping Achtyl arrest him either. With blood dripping from his face, he asks that he be allowed to take his cell phone out of his hand before submitting to the arrest.
"Put your (expletive) hands behind your back," Flowers shouts, as a crowd forms.
Achtyl takes Belsito to the ground to force on the handcuffs.
The deputies' written complaint against Belsito says that when told he was under arrest for swearing "the defendant did fight with the arresting deputies by swinging his arms and attempting to pull away." The complaint goes on to say he "engaged in fighting" and in "violent, tumultuous and threatening behavior."
Nothing from the Flowers' video shows this. As for the 14 seconds, Belsito's lawyer says he has photos and witness testimony to show Belsito never fought with Achtyl in that time. He also has a clip, taken by another tailgate reveler as Deputy Flowers steps out of the patrol vehicle. In it, Belsito is taking hits to the face and body from Achtyl's baton and doing little to protect himself.
Some defense lawyers call cases like these "contempt of cop." Another term is "retaliatory arrest."
"They basically manufacture a crime, then charge you for resisting arrest while arresting you for it," Daire Brian Irwin, a former director of the Western New York office of the New York Civil Liberties Union, said of a practice by some officers to "teach somebody a lesson."
"I don't like the word 'hero,' " said Irwin, whose practice focuses mostly on criminal defense. "But the good cops are heroic because they know how to defuse a situation. There is nothing a bad cop hates more than someone who is expressing their constitutional rights."
For first-time offenders, charges such as disorderly conduct and obstructing governmental administration are often "adjourned in contemplation of dismissal" and the record sealed if the person stays out of trouble for a period of time. But those types of dismissals can still cause hardship. So can having the case dismissed outright.
There's the time and expense of going to court, and the difficulties that arise while seeking a job as the case is pending, Irwin said. Also, some forms, for jobs in law enforcement or to pass one of the final steps to being a lawyer, for example, ask if the applicant has ever been arrested, he said. So even an arrest from a sealed case needs to be disclosed.
Then there's the hit to a person's psyche by a needless criminal case. "People who originally thought they were safe and secure sometimes suffer serious psychological damage as a result of these arrests," Irwin said. "They thought they lived in a country that was one way, and now they realize they live in another."
Belsito's family, his lawyer said, spent thousands of dollars hiring a criminal defense attorney and a private investigator, and on travel and lodging in the Buffalo area for court appearances. Belsito still has lingering effects from the concussion and the broken nose he suffered during the arrest, Glazer added.
"He's been affected by it," he said. "Both mentally and physically."
Case in Manhattan
In 2015, the Court of Appeals issued a unanimous ruling in People v. Gonzalez, a case in which maintenance worker Richard Gonzalez had shouted obscenities at police officers in a Manhattan subway station. The police stopped him, found he possessed an illegal gravity knife and charged him with criminal possession of a weapon.
Gonzalez wanted evidence of the knife suppressed, arguing the stop by police was illegal. Lawyers for the city argued that even if the police stop was illegal, the police had had enough reason to hold Gonzalez for disorderly conduct, which would have let them conduct a search. But the Court of Appeals affirmed lower court decisions by ruling, as it had in a case in 2013, that a person may be guilty of disorderly conduct "only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem."
With the Gonzalez encounter, his swearing at the police, even loudly, had not become a potential or immediate public problem. The charge against him was dropped.
Lawyers for police agencies have defended lawsuits against wrongful arrests for swearing at officers by saying the person could have been charged with other crimes, but officers chose not to lodge those other charges. Just days ago, the U.S. Supreme Court heard arguments in a case that could decide whether the existence of probable cause for any charge nullifies a civil lawsuit for a retaliatory arrest.
Glazer, Belsito's lawyer, says he's confident that the lawsuit he's preparing, which will allege a violation of civil rights and that the Sheriff's Office's fails to properly train its deputies, among other things, will succeed. He has cleared one hurdle: A judge agreed he can file a notice of claim even though 90 days had passed since the date of the incident. Glazer asked for the extra time because Belsito had gone back home after the school year, the charges were not dismissed until June, and his client didn't contact him until August.
The News sent Howard's chief of administration, John W. Greenan, and his spokesman, Scott Zylka, a list of questions about the incident, asking, among other things, whether deputies are informed that swearing at an officer does not justify an arrest for disorderly conduct and whether the top staff acted on the discrepancy between the video and the deputies' narrative. But the officials maintained their long-standing policy of not commenting publicly on pending litigation.
Several minutes after Belsito's arrest, Deputy Achtyl is shown in the video briefing a sheriff's medic outside New Era Field on what happened. The medic has arrived to examine Belsito, who is still sitting in the back of the patrol car. Blood cakes his face and he's shouting angry words at the deputy.
Achtyl tells the medic his version of what happened, contradicting what the video had captured. The deputy describes him as having acted more aggressively than what the body camera showed.
"He comes up and knocks on my (expletive) window and he's mother(expletive) me through my (expletive) window and I get out to write him for disorderly conduct ..."
And that's when the fight started, Achtyl said.
Warning: The following video includes blood and language.