Three city officers cleared in 2011 shooting
Grand jury says police justified in killing man waving gun as he ran
Updated 11:02 p.m.
SCHENECTADY The three police officers who shot and killed Luis Rivera last year have been cleared of all wrongdoing.
A Schenectady County grand jury handed up a decision Tuesday saying the officers “were justified in using deadly physical force.”
Rivera was shot in the back as he ran from police Aug. 12, 2011. Officers were looking for him after a witness called 911 to say he saw a man waving a gun. The gun was later found to be broken and unloaded.
Schenectady County District Attorney Robert Carney said Rivera was heavily intoxicated and high on marijuana at the time of the incident, which he said might explain his “inexplicable” and “irrational” decision to wave an unloaded gun at police.
“Why did he do it? That’s a hard question to answer,” Carney said. “It’s kind of puzzling. He clearly did not intend to shoot the police, but there’s no way they could have known. … But he had to know the gun wasn’t loaded.”
He added that he didn’t think Rivera was trying to arrange a suicide-by-cop.
“It doesn’t seem he was suicidal … because he was trying to run away from them,” Carney said. “Either he wanted to intimidate them and get them to back off, or he wanted to throw away the gun.”
He said Rivera must simply have been too drunk to think straight.
“It can only be explained by his significant intoxication,” he said.
Rivera had a blood-alcohol level of 0.15 percent, and a urine-alcohol level of 0.24 percent, which indicated he had been drinking heavily for hours and was starting to “come down” from the bender, Carney said. A driver is considered legally intoxicated with a blood-alcohol content of 0.08 percent.
NAACP member Treasure Clayton disputed Carney’s conclusions, saying Rivera threw away the gun before running away. She said NAACP members interviewed five witnesses who said Rivera threw the gun away as soon as Sgt. William Fennell confronted him.
“It went far, so he was really scared. He feared for his life,” Clayton said. “I believe that he wasn’t trying to cause harm to anybody.”
She suggested he might have been taking the gun to a gun buyback program, although some witnesses said he was threatening to hit someone over the head with it.
Rivera had been robbed the night before, and police described him as furious about it. He refused any help from officers and would not identify his assailants.
Clayton couldn’t explain why Rivera did not get down when police ordered him to do so, but speculated he was too frightened to obey when an officer suddenly jumped out of a car at him. But she added that if the NAACP reviews the evidence and finds that Rivera did pull out the gun in a threatening manner and run before throwing it away, she would agree that the police did nothing wrong.
“If the evidence shows what [Carney] said is true, we will let this matter go,” she said.
The Daily Gazette has formally requested the camera footage from the police patrol cars through a Freedom of Information Act request. Carney said the camera footage showed most of the incident, and seven civilian eyewitnesses also provided testimony to the grand jury.
Carney gave the following account, based on the testimony and camera footage:
The incident began when a police officer found Rivera crossing State Street. Fennell pulled up in front of Rivera and jumped out of his car, shouting to Rivera to get on the ground.
Rivera ignored four orders to get down and instead crossed the street, away from the officer. When Fennell caught up and grabbed his shirt, Rivera pulled away and reached for his gun, which was hidden in a pocket.
As he pulled away, he stepped out of the camera’s frame of view, but the police officers could still be seen and heard, Carney said. One second after Rivera stepped out of the camera’s view, Fennell shouted, “He’s got a gun!” A second later, the officer began firing. Two other officers, who were running to the scene from their car, also fired, Carney said.
According to witnesses, Rivera pulled out his gun, but never directly pointed it at police. However, he pulled it out in a wide gesture, which police interpreted as his moving to aim the gun at them.
He then turned and ran and at some point threw the gun away — it landed on the other side of the street. It is possible his large gesture with the gun was the first motion in throwing it away, but one witness told the grand jury he saw Rivera still holding the gun after he began to run. He saw Rivera about 50 feet from police; Rivera fell to the ground about 115 feet from the officers.
The gun wound up near the intersection, suggesting it was thrown as Rivera began to run away, but Carney said Rivera could have thrown it backwards as he ran.
The officers testified they did not see him throw the gun. Carney said they were trained to focus their aim at the chest — instead of using their peripheral vision to watch for hand movements and other motions.
He added that police could not let Rivera run away with a gun in his hand.
“The danger is, even as he’s running, he could shoot someone, he could take a hostage,” Carney said.
Residents on Grove Place, a quiet side street, were horrified to see an apparently unarmed man pursued and shot down by police as he ran from them. The incident led to allegations of police misconduct — even to the point of stories that police shot Rivera after handcuffing him.
Carney said dashboard cameras clearly showed Rivera was never in police custody before being shot and was not wearing handcuffs as he ran.
Some residents also complained because police fired 14 shots and hit Rivera only twice. The other shots went wide, striking three houses, two telephone poles and a car windshield. One of the houses was on another street — the bullet passed behind the Grove Place houses and across their yards to Victory Avenue.
Carney said the officers were clearly trying to aim because they paused between shots. He said they could have each fired 15 shots in the 4.4 seconds before Rivera fell to the ground, but Fennell fired seven shots, while Officer Kevin Rayball fired four times and Officer Michael Wood fired three times.
“There was nobody in their line of sight,” Carney said, adding there were many people on State Street at the time but no one near Rivera on Grove Place.
“Shooting a gun in an urban environment is never safe, but I can’t say police were reckless,” he said. “Thank God nobody was hurt.”
Carney said he would not release the camera footage because he didn’t think the public should see it, even though Rivera’s death is not shown.
“It is not necessarily the kind of thing I really think should be in the public sphere,” he said.
Clayton questioned that, saying, “I don’t see how there is a problem if there’s nothing to hide.”
Carney said the investigation also cleared up two other points. Video from the night before Rivera’s death, when police interviewed him as a victim of a robbery, showed Rivera could speak and understand English, he said.
Also, Carney said the investigation determined Rivera’s gun was most likely broken before he threw it. The feeding mechanism would not work, meaning that even if it had had a full magazine, bullets could not enter the firing chamber.