VIDEO: Officer who fatally shot fleeing suspect won't face charges

Dec 3, 2018

No charges are being filed against a Buffalo Police officer who fatally shot a man he was attempting to apprehend.

Rafael "Pito" Rivera, 32, was fatally shot by officer Elnur Karadshaev on Plymouth Avenue Sept. 12 as he was fleeing on foot.

Rafael "Pito" Rivera was fatally shot as he was fleeing a Buffalo police officer on Plymouth Avenue in September.
Credit PUSH Buffalo

Erie County District Attorney John Flynn announced his decision late Monday morning, saying evidence supports the shooting as justified. He said that evidence includes surveillance video from two nearby locations, witness statements and DNA from a loaded handgun recovered from the scene.

The DA said Rivera had turned toward the officer with a gun in his hand before the fatal shots were fired.

"Based upon all the facts that I have uncovered, and a thorough investigation was done, I have made the decision that this was a justifiable shooting by the police officer. There are going to be no charges against the police officer involved and, from my end, this matter is closed," Flynn said.

Toxicology tests show Rivera had cocaine, marijuana and alcohol in his system. Flynn said the only DNA found on the gun was Rivera's. He also noted that Karadshaev, as he gave his statements on three occasions, was unaware of video captured by a private home's security camera. That video matches the officer's testimony, according to Flynn.

The DA stated he met face to face with members of Rivera's family Monday morning and informed them of his decision and explained why.

Screenshot from surveillance video of the fatal shooting of Rafael "Pito" Rivera (in red). Three Buffalo Police officers can be seen behind him, to the left and right.
Credit HoganWillig Attorneys at Law

Steven Cohen, the attorney representing Rivera's family, said they had evidence to present to the investigation but was ignored.

"Why wouldn't they be open to any of the evidence that we wanted to present?" Cohen said. "Why wouldn't they be willing to discuss this with us before an hour prior to the news conference where they were going to release their findings? Why wouldn't they interview members of the family?"

Karadshaev, a two-year veteran of the force, was placed on administrative leave as the shooting was investigated.

A department spokesperson issued a statement Monday reading, "We appreciate the District Attorney's independent and thorough investigation. With pending litigation, we cannot comment further at this time."

The deceased man was the father of two children. Rivera's family plans further legal action.

"Certainly we're going to be proceeding with civil litigation," Cohen said. "But we're also going to be speaking to the Attorney General about pursuing charges and possibly the United States Attorney about pursuing criminal charges against the police officer and anybody who is covering up what happened here."

Since 2015, all police-related fatalities of unarmed civilians are first taken up by the New York State Attorney General, as per an executive order issued by Gov. Andrew Cuomo. Flynn explained that the AG's Office did not take up Rivera's case because a gun was recovered at the scene.

WARNING: This video contains graphic footage of a man being fatally shot. Viewer discretion is advised.