With Intent to Write
Michael I. Niman, ArtVoice
been nearly five months since I was arrested, clubbed, choked, kicked and forced
to march naked through a cell block by Buffalo Police officers. My crime was
photographing an unfolding police riot against a regularly scheduled monthly
"Critical Mass" group bicycle ride on May 30th. In all, nine people
were arrested, including a Good Samaritan – the former Senior Vice President
of a local health care corporation who got out of her car to beg police to stop
clubbing people. Arrestees were charged with multiple felonies and misdemeanors.
of witnesses corroborated photographic evidence from eight photographers
documenting a violent attack by police officers, including two lieutenants,
against law abiding people. Given the strong visual evidence, the local media
deviated from their editorial pattern of compulsive reliance on official
sources, and framed the story as a police brutality case instead of a
"bicycle riot" as alleged by police officials. Photos of the event ran
on local television, The Buffalo News and on various websites.
For many Western New Yorkers familiar with the incident and photos, the story ended here. The general assumption is that charges were dropped and perhaps some sort of brutality investigation is pending. End of story.
Still Not Charged
People are shocked to hear that eight defendants are still facing trial in November and that Erie County District Attorney Frank Clark has not filed charges against a single police officer involved in the melee.
charges against the group were dropped because, aside from police actions, no
one saw anything resembling a riot that day. Not so much as a shrub or flower
was damaged and traffic flowed unimpaired where police allege the riot occurred.
Even the arrest reports fail to describe a "felony riot" situation.
Hence, the D.A. couldn’t pursue the charge. The felony riot charges, however,
were craftily replaced with misdemeanor riot charges.
of "felony assault of a police officer" were reduced for similar
reasons – i.e., no police officers were injured.
Piret’s case was similar. Photos show officers throwing Piret onto the hood of
a police car and beating him. Witnesses saw officers jab a billy club
perpendicular into Piret’s back. Piret’s arresting officer later verbally
claimed that Piret kicked him in the leg. For his written statement, however,
the officer changed the point of impact from his leg to his chest. He claimed
Piret executed this kick while pinned to the hood of the patrol car, a move that
would require Piret to have a substantially longer leg with two additional
joints. Medical records, however, showed no evidence of the officer having a
evidence showing the assaults couldn’t have taken place, and a lack of injured
officers, D.A. Frank Clark’s office is still pursuing misdemeanor assault
charges against Piret and myself.
The First Case
May 30th incident began with two traffic stops a half block apart. At the first
stop, two "D" district officers freelancing in the "B"
district, stopped the entire ride of 120 bicyclists. They issued inaudible
directions to the lead rider, then waved the group on. The same two officers
again pulled the ride over a half block later, this time issuing citations to
two cyclists at the rear of the pack for "failure to yield to an emergency
Friday, October 17th, those cyclists, accompanied by attorney Mark Mahoney, went
to traffic court and confronted the ticket writer. The officer testified under
oath that he pursued the two cyclists with his siren blaring for "two
thousand yards" (roughly 1.1 miles). Under cross-examination, he was asked
if he was certain about the distance. He amended his sworn testimony to,
"one thousand yards" (about one kilometer).
then introduced a sequence of four of my photos into evidence. These photos
showed the initial stop, the two defendants passing the officer who was still
standing next to his car, and then the same car and officer pulling them over a
half block later – about 100 feet after making contact again with the
judge asked the officer to point to the spot on the photo that corresponds to
the point on
trained police officer testifying in traffic court is legally assumed to be an
expert on judging distance and speed. People are often convicted of traffic
violations based solely on officer testimony. Traffic court proceedings assume
officers will be honest and accurate. A distance judging error of, say, 20
percent can mean the difference between guilt and innocence. Still, one can
argue such an error is based on incompetence, and is not evidence of intentional
perjury. In this case, however, there’s a 600 percent discrepancy, and hence,
evidence of perjury. However, District Attorney Frank Clark’s office has not
sought perjury charges against the officer.
Photographer _ Stop the Creation of Evidence
I’m raising these traffic court proceedings here to show how the photographic record played a major role in preventing two innocent people from being falsely convicted of a crime, minor as it may be, while raising questions of perjury. Photos from various photographers also document the peaceful arrest of Canisius College Ethics Instructor Heron Simmond. This photographic record will help acquit Professor Simmond, who is currently facing multiple charges of resisting arrest, disorderly conduct, obstructing governmental administration and riot. The same photographs should help secure perjury indictments against the officers who leveled false charges against Simmond.
police testimony often considered sacrosanct, Simmond, who initially faced
nearly 10 years in jail, could have been convicted on false charges. The
photographic evidence, however, lends credence to the scores of witness
statements contradicting the affidavits signed by the arresting officers.
Simmond photographs were the last pictures that I took on May 30th
before being struck from behind by a police officer.
photographers and preventing creation of a photographic record is common during
the early stages of what sociologists term "police riots." By
arresting me, a police officer succeeded in removing the only professional
photographer from the scene. Luckily, however, four amateur photographers
captured my arrest on camera. Their photos should serve to substantiate witness
statements and lead to my acquittal, and, hopefully, to the prosecution of the
officers who beat me and leveled perjurious charges against me.
wasn’t the only photographer targeted, however. Amateur photographer Jon Piret
was also arrested. Piret’s fateful moment came when he photographed three
officers beating arrestee Eric Bifaro. One of those officers, a lieutenant,
makes direct eye contact with Piret’s camera, seemingly leading to Piret’s
arrest by another officer less than a moment later. Piret’s camera was
recovered from nearby bushes by another cyclist.
so coincidentally, the two photographers (Piret and myself) were the two people
who initially received felony assault charges, and are currently being
prosecuted by District Attorney Frank Clark’s office for "assault of a
most angering aspect of this case is that the people who were attacked on May
30th are all crime victims who are being further victimized by the D.A.’s
were assaulted in broad daylight on the city’s busiest street in front of over
one hundred witnesses. Photographs document this attack and clearly show the
faces of our assailants. Still, almost five months have passed, and no public
agency has moved to prosecute them.
the assailants are police officers, victims feel vulnerable to further attack
from “thugs” who are regularly seen in their neighborhoods sporting clubs
of the victims filed confidential complaints against the officers with the
Buffalo Police Department’s Professional Standards Division (Internal Affairs
Bureau). These complaints and the supporting statements by witnesses, however,
wound up in the hands of prosecutors pursuing charges not against the officers,
but against the complainants.
where our criminal justice system seems broken. In a society where rapists,
muggers and other vicious criminals regularly plea bargain for reduced charges,
innocent people are coerced to plead guilty to crimes they haven’t committed
in order to avoid prohibitive legal expenses and the risk of conviction on
inflated charges. Ultimately, what we have is little justice at all.
Our case fits this pattern. All of the arrestees were hit with inflated
charges with roughly 10 years of jail time hanging over each of our heads. The
D.A. is brazenly pushing ahead with what can only be termed a malicious
prosecution of crime victims.
our case, however, legal services are being provided pro bono (free) – donated
by a conscientious team of attorneys. This case – which lawyers felt should
have been dismissed immediately – has drawn on for months, with a slew of
court proceedings and an impending trial. It appears that the prosecutor’s
strategy is to wear down the pro bono attorneys until, one by one, they burn out
and leave the case. This, however, isn’t happening.
Thousand Dollar Gift
date, we have probably received in the neighborhood of $100,000 worth of legal
services, with our volunteer attorneys footing the bill for many related support
services. Without this extraordinary
legal team, headed by Mark Mahoney, and including Robbie Billingslea, former
Judge Andy Lotempio and Leigh Anderson, this defense would pose an overbearing
burden for us.
we didn’t actively contest these charges, the perjury presented in the
arresting officer’s sworn affidavits would never have been questioned. That
perjury is perhaps the most frightening aspect of this case. The ease by which
the arresting officers in this case fabricated their stories illuminates what
seems to be a widespread culture of lying. The fact that one officer
thoughtlessly committed perjury over a minor traffic ticket shows how
frighteningly easy it is for some police officers to lie under oath. Citizens
simply riding their bicycles suddenly found themselves exposing a culture of
police and prosecutorial corruption. None of us asked for this responsibility.
the D.A. & the U.A.W.
publicly funded prosecution of this case has been relentless. District Attorney
Frank Clark’s office, for example, assigned Chief Confidential Criminal
Investigator John Abraham to conduct a political background check on me. Abraham
has visited at least one local bicyclist at his place of employment, asking
questions such as, "Would you say Michael I. Niman is a liberal?"
"Is he a communist?" "Would you say he’s down on society?"
line of questioning brings back shades of the McCarthy era. This is why groups
such as the National Writer’s
local government facing a fiscal crisis, this prosecution would seem a clear
waste of public funds on the part of D.A. Frank Clark’s office. Officers who
falsely claimed to have injuries and subsequently took medical leave, have also
misappropriated public funds, as did officers claiming overtime pay to file
false arrest reports on the night of May 30th.
in the patrol cars, arrestees became captive audiences for chatty officers.
Oddly, one arresting officer reportedly asked an arrested cyclist if he was
aware of the high suicide rate among police officers. Another complained about
being forced to take "sensitivity training," making condescending
comments about the training. Referring to the behavior of the officers on the
scene, another explained, "This is what we call crowd control."
Various officers ad-libbed a reactionary political vision, admonishing arrestees
for being "protestors" while expressing their personal disdain for
people who participate in public protest activity.
the holding center, a portly jailer threatened to pepper spray arrestees locked
up in cells. Upon identifying me as a journalist, the same jailer forced me,
under threat of a beating, to march naked through the cellblock area, asking me,
"Are you gonna write about this?"
answer is "yes," but it’s taken me a while. As a journalist, I’ve
certainly found the experience chilling. This is not what
of the victims of the May 30th assault are haunted by one unanswered question.
That is: Why is District Attorney Frank Clark pursuing this case?
the arresting officers on the witness stand, a necessity in any trial, will
leave the officers only two options. Option one is to admit to filing false
arrest reports. Option two is to commit perjury on the witness stand. If they
choose the second route, they’ll be in the extremely difficult position of
having to explain the dramatic difference between witness statements and
photographic records, and their own accusatory statements. And they’ll have to
do this while being cross examined by some of the region’s best attorneys.
Not an Isolated
important to mention that this is not an isolated case. There are many stories
of people being beaten and falsely charged with crimes. “Resisting arrest”
is a common charge in
reason this particular case made the news as a police brutality case is twofold.
One, there were lots of vivid and disturbing photos. And two, they showed white
folks being beaten. These two factors, combined with the fact that the arrests
took place not on
also want to make it clear that such behavior is not universally accepted within
the Buffalo Police Department. Many
Come to the
still can’t say for sure why we were arrested or why the District Attorney is
persisting to prosecute us. The fact remains, however, that the May 30th
arrestees are still collectively facing jail time and an expensive trial. Though
legal services are being provided pro bono, there are still thousands of dollars
in ancillary defense expenses that
to be paid for. Toward that end, a group of bicyclists and arrestees have come
forward and formed the Critical Mass Defense Fund. The first fundraising event
will be at Nietzsche’s (
can also donate to the defense fund by making checks out to "The Critical
Mass Defense Fund" and mailing them to the Critical Mass Defense Fund, c/o
The Western New York Peace Center,
about the May 30th incident is available online at http://mediastudy.com/cm.html.
Michael I. Niman’s previous columns are
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