The mother of Rafael "Pito" Rivera has filed a notice of claim against the City of Buffalo and its Police Department in the September fatal shooting death of the 32-year-old father of two.
Steve Cohen, attorney for Denice Rivera, told WBFO the notice gives the city 90 days to "reach out" for a resolution. If not, he said a lawsuit will be filed in New York State Supreme Court.
"The notice of claim sets forth the date, time place of the occurrence and the theory upon which we are claiming the city is at fault," Cohen said, "in this case it's the tortious conduct negligence, recklessness and intentiality, negligent training and hiring, and negligent policy and procedures."
Rivera, 32, died shortly after 3 a.m. Sept. 12 in the parking lot outside PUSH Buffalo's headquarters on the city's West Side. PUSH provided a surveillance video of the incident to police and Cohen, which he allowed WBFO and other media to view.
"What is crystal clear is that Mr. Rivera was runnng away from the police and he was shot, he fell, he tried to get up and continue to run away from the police and he was shot again, in his side and in his back," Cohen said. "Article 35 of the New York Penal Law says the condition under which deadly force can be used and nowhere does it say you can deadly force against someone who is running away."
Attorney Thomas Burton, who is representing the Buffalo Police officer shown on the video to have taken the fatal shots, disagrees with Cohen's premise. Burton has told WBFO the evidence will show a "pretty straightforward case" of self-defense according to the law.
Deputy Police Commissioner Joseph Gramaglia also has maintained in media briefings that the case was handled appropriately according to law, as Rivera had a loaded firearm and posed a threat to the officer.
The notice of claim also seeks "all damages under the law for ecoomic loss, special damages, pain and suffering, emotional suffering, punitive damages and other damages, the full extent of which are unknown at present."