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Officer who fatally shot man on West Side won't face charges

A Buffalo police officer who shot and killed a 32-year-old man during a foot chase in the early morning of Sept. 12 on the city’s West Side was justified in shooting him, Erie County District Attorney John J. Flynn said Monday.

Rafael “Pito” Rivera had a gun when he ran from police, ignored the officer’s commands to drop the weapon and was turning toward the officer while holding the gun, the prosecutor said.

Officer Elnur Karadshaev fired six shots, hitting Rivera three times.

“The deceased clearly had a gun in his hands and had a gun on him and was actually turning toward the police officer with a loaded weapon in his hand,” Flynn said.

The officer will not face criminal charges, Flynn said.

“I think that it is important that when an officer does the right thing, acts responsibly, is justified in the shooting, that that is also pointed out,” Flynn said.

Rafael "Pito" Rivera, 32, was fatally shot by a Buffalo police officer Sept. 12.

Here’s how the situation unfolded, according to Flynn’s account of the evidence in the case, including statements from the officer who fired the shots, other officers, as well as five civilian witnesses, including a security guard who was in the parking lot where and when Rivera was shot:

Someone called 911 at 3:06 a.m. to report a man with a gun and Karadshaev was the first officer to arrive on the scene. The caller didn’t give the name of the street, only saying “at 197.”

Based on the location from which the cellphone call was placed, dispatchers routed officers to the vicinity of 197 Massachusetts Ave.

Karadshaev, who was in uniform, asked a group of people on a house porch at 195 Massachusetts, near the corner of Plymouth Avenue, if they had seen anything or made the call. They told the officer they did not.

The officer started looking around. A short time later, he saw a man run out of a neighboring house, through a vacant lot and then hop a fence.

The officer ran after him along Plymouth.

At some point, according to Flynn, Karadshaev noticed the man had a gun. He yelled for the man to stop and put down the gun, which was verified by security video that prosecutors obtained from a house on Plymouth Avenue the two ran past, according to the district attorney.

About halfway down the block, as Rivera ran past former School 77 at 429 Plymouth, a site which was undergoing construction, he tripped and fell.

As he got up, he turned toward the officer, who then fired his weapon. Rivera was pronounced dead at the scene.

Flynn cited several factors he considered important in drawing his conclusion:

  • Karadshaev didn’t draw his weapon until he saw the gun in Rivera’s hand.
  • Rivera knew Karadshaev was a police officer because at one point during the chase he turned his head around to look behind him.
  • Karadshaev yelled numerous times for Rivera to get down, drop the gun and stop running.
  • The officer discharged only six of the 16 rounds in his gun.

“It’s not like the officer was reckless here,” Flynn said.

The officer was consistent in the three statements he gave: to detectives at the hospital after the shooting, in a written statement to homicide detectives about a month after the shooting and in an interview with the DA’s Office.

Surveillance video shows man run, trip, then shot by police

The security guard gave two statements to investigators that contained “little to no discrepancies” among them, the DA said.

Aside from the surveillance video from the home on Plymouth, as well as statements from officers and witnesses, prosecutors also reviewed surveillance video taken outside the former school on Plymouth from PUSH Buffalo, the social justice organization that occupies the building.

Authorities found a loaded 9 mm handgun on the ground a few feet from Rivera’s body. Laboratory analysis found only Rivera's DNA on the weapon, the district attorney said. The firearm was loaded with 15 rounds and no rounds had been discharged from that gun.

Rivera had "hundreds of dollars" on him, along with some marijuana, when he was shot, according to the district attorney. He did not legally own the gun he was carrying, the DA’s Office said.

The District Attorney’s Office only last week received the final autopsy report from the Erie County Medical Examiner’s Office, which had been awaiting final toxicology results. Those tests showed Rivera had cocaine, marijuana and “an excessive amount of alcohol” in his system, according to the district attorney.

One of the bullets fired at Rivera entered through the right side of his torso and exited from the front of his chest; another grazed the right side of his forehead; the third entered the right side of his back, according to prosecutors.

Four of the five people who were on the porch of the home on Massachusetts Avenue gave statements to the DA’s Office. They reported Rivera showed up looking for some "missing money" and his girlfriend, to whom he had given about $9,000. The individuals on the porch were all connected with the girlfriend, Flynn said. There was an argument, and Rivera pulled out a gun and pointed it at one person, saying he was going to kill everyone and shoot up the house.

Mother of man killed by Buffalo police files notice to sue

Karadshaev, a Central District officer who was on the force about two years at the time of the shooting, has been on administrative leave since the shooting.

Thomas H. Burton, Karadshaev’s attorney, said he expects the matter to be reviewed soon by the Buffalo Police Department’s Internal Affairs Division. After that, he expects Karadshaev will be back to work.

“The district attorney reviewed far more facts than were available right after the incident,” Burton said. “And when you look at this from beginning to end, it could not have been more righteous, still a tragedy, but nonetheless a justifiable use of deadly force under New York law.”

Flynn said his office would not release the surveillance video from the shooting to the public.

He explained why he did not put the matter before an Erie County grand jury.

“This was a clear case where there was no evidence at all that showed that the officer did anything wrong at all,” he said. “I put cases in the grand jury to indict. I put cases in the grand jury when I believe that someone has committed a crime here.”

Steven Cohen, a lawyer representing Rivera's mother in a planned civil lawsuit, disagreed with Flynn's decision. The shooting fits the definition of, at least, second-degree manslaughter and possible first-degree manslaughter, Cohen said.

Cohen, along with Rivera's mother, Denice, and other family members, met with reporters in the lawyer's office, where Cohen narrated a section of surveillance video showing the shooting.

"You can see Pito running out, running from the police, falling to the ground, being shot, crawling away from the police, getting up and running away from the police and getting shot two more times. And this is fine with the district attorney," Cohen said.

"You'll watch Pito handcuffed on the ground while he's bleeding out, and nobody lifts a finger to help him," Cohen added.

Rivera's family members declined to comment.

News Staff Reporter Harold McNeil contributed to this report.

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