Feb 8
2024
Minimal discipline for problem Buffalo cop
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In the space of 10 months, Buffalo police officer Davon Ottey cursed, wrongly arrested people, used excessive force, lied about brandishing a knife and sprayed hand sanitizer on a man who used a phone to record police, according to the New York State Attorney General’s office.
Ottey’s conduct between June 2019 and April 2020 prompted five citizen complaints and was sufficient to warrant a criminal investigation, the attorney general’s office wrote in a Dec. 28 letter to Police Commissioner Joseph Gramaglia.
For its part, the department sustained two complaints against Ottey, issuing a six-day suspension in one case and a reprimand in another. No other formal action was taken.
The attorney general’s office determined that Ottey, 39, engaged in a pattern of misconduct, but additional punishment is precluded by statutes of limitation. The department should review his traffic stops and use of force for the next two years, the attorney general’s office recommended in the December letter.
“While Officer Ottey bears responsibility for his past conduct, the agency is responsible for providing guidance, training and supervision to its officers to ensure safe, equitable and constitutional policing,” Tyler Nims, chief of the attorney general’s Law Enforcement Misconduct Investigative Office, wrote in a December letter to Gramaglia.
Under state law, the department has 90 days to respond to the attorney general’s recommendations.
Ottey’s misconduct occurred while he was assigned to the department’s housing unit, which was disbanded in 2020, according to the attorney general’s office.
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Buffalo police told the attorney general’s office that no one has complained about Ottey since he returned to regular patrol on June 15, 2020, Nims wrote in his letter to Gramaglia. However, department disciplinary records show that someone complained of being injured during a patdown search by Ottey on June 26, 2020. The complaint was not sustained, meaning that the department did not find sufficient evidence to prove or disprove the allegation.
Ottey could not be reached for comment. Neither Gramaglia, Nims, John Evans, president of the police union, or Michael DeGeorge, spokesman for the police department and Mayor Byron Brown, responded to interview requests.
Ottey currently works in the department’s A district, which encompasses South Buffalo. He earned $125,000 in 2023, including overtime and back pay, according to city payroll records.
Under state law passed in 2020, police departments are required to notify the attorney general when five or more people complain about an officer in five or more separate incidents within two years. The attorney general’s office interviewed complainants, witnesses and Ottey as part of the investigation, according to Nims’ letter.
The attorney general’s findings came shortly after Gramaglia and the mayor in depositions testified that the city’s contract with the Buffalo Police Benevolent Association makes it difficult, if not impossible, for the department to discipline cops.
No allegations against Ottey were considered by an arbitrator, according to Nims’ letter. Instead, the department decided what should be done.
Here’s a synopsis of the attorney general’s findings in the five incidents:
Cussing and dismissed charges
Ottey’s misconduct cases reviewed by the attorney general started with a 2019 incident in which Ottey arrested a woman who had cursed at him.
“Officer Ottey…grabbed [complainant’s] arm and twisted it behind her back, pushed her onto her car, then finally onto the ground, where he handcuffed her,” Nims wrote. “According to complainant’s mother, who witnessed the incident, Officer Ottey ‘rammed complainant against the wall’ of a brick building and held her there for several minutes. According to both the complainant and her mother, Officer Ottey threatened to arrest complainant’s mother after complainant’s mother asked what he was doing to her daughter.”
Ottey acknowledged grabbing the woman, putting her against a wall and holding her after she refused to provide identification, Nims wrote. Prosecutors dismissed charges of disorderly conduct and obstructing governmental administration.
The attorney general’s office concluded that Ottey had used excessive force, that he had no cause to arrest the woman for disorderly conduct and likely lacked cause to arrest her for obstruction of governmental administration.
“[I]t is undisputed that the profanities were only directed towards [sic] the officers and that complainant’s conduct amounted to nothing more than a few brief statements,” Nims wrote in his letter to the commissioner.
The complaint was handled by Capt. Scott Testa, since retired, who worked in Ottey’s unit and recommended exoneration, meaning that the officer’s actions were justified. The commissioner has authority to accept or reject recommendations.
Testa found that Ottey’s account was accurate, Nims wrote in his letter to Gramaglia. The captain said that he “had worked with …Ottey and always found him to be respectful and professional,” Nims wrote. The captain determined that the complainant had “acted inappropriately,” Nims wrote, and told her “how to conduct herself in the future in case she was involved in a similar situation.”
Testa recommended exoneration after the department had previously suspended Ottey for six days upon determining that he hadn’t been truthful about an encounter that included him displaying a knife during an off-duty fight, Nims wrote.
Testa could not be reached for comment.
Pulling a knife
The knife incident began when Ottey stopped a car for a traffic violation, smelled marijuana, ordered a man and his brother-in-law out of the car, then searched the vehicle, Nims wrote. Ottey, Nims wrote, couldn’t recall why he’d ordered the men out of the car or why he searched the vehicle.
“I always check the car,” Ottey told the attorney general’s office, which determined that the officer’s statement raised questions about constitutional protections against unreasonable searches.
While searching the car, Ottey dropped his cell phone, according to Nims’ letter. When he discovered it was missing, he called his phone, according to the letter. One of the men who’d been in the car answered. An agreement was made to return the phone at the house of the man’s mother after Ottey finished his shift, Nims wrote.
The man’s mother stepped out of a car to return the officer’s phone when Ottey arrived, according to Nims’ letter. She told the attorney general’s office that she was suffering from sepsis and had recently undergone knee surgery — a security camera showed her limping, Nims wrote. The woman told Ottey that she hoped he would extend the same courtesy that her son had shown him, Nims wrote.
When Ottey cursed, the woman told him that he should be careful about whom he pulled over and that she knew he had a wife and children, Nims wrote. Ottey took that as a threat, Nims reported, and began recording the woman on his cell phone. She waved her hand in front of the phone to block recording, and Ottey struck her hand with his own, Nims wrote.
The woman’s son began fighting with Ottey, who punched the son, according to Nims’ letter. Then Ottey stepped on the woman’s foot, Nims wrote. When another son began advancing, Ottey pulled out a knife, prompting the woman and her two sons to retreat, Nims wrote, and Ottey then drove away. The man who’d been punched said that he suffered a sprained neck while his mother sustained a broken foot, Nims reported.
Ottey initially told internal affairs he never had a knife, but ultimately admitted that he did, according to Nims’ letter. He was suspended for six days after pleading guilty to departmental charges of using unnecessary force and failing to complete a use of force report.
“Although the matter was not referred to the Erie County District Attorney’s Office, this conduct potentially could have subjected Officer Ottey to criminal charges,” Nims concluded.
The attorney general’s office found that Ottey lacked cause to put anyone in a patrol car after finding a small amount of marijuana. Nims also wrote that Mayor Brown, months before the incident, had directed the department to stop enforcing minor marijuana offenses, which should have prevented Ottey from arresting anyone or searching the complainant’s car.
Retaliatory tickets
The attorney general’s office found that Ottey wrongfully wrote equipment violation tickets in October, 2019. Four tickets for unsafe tires came after a driver cursed at Ottey while pulling away after being cited for not wearing a seatbelt, Nims wrote.
“I was going to give him a break and then I didn’t give him a break after [profanities were used] because I didn’t think he deserved the break,” Ottey told the attorney general’s office, according to Nims’ letter.
The man told the attorney general’s office that Ottey pulled him out of his car, dragged him to the rear of the vehicle and handcuffed him, Nims reported. Ottey said he used no force, Nims wrote.
Internal Affairs deemed the man’s complaint not sustained. Despite not being able to prove or disprove the allegation, investigators recommended that a deputy commissioner counsel Ottey. The unnamed deputy commissioner told Ottey to make better decisions and better choices, according to the attorney general’s office, which found that the officer’s conduct was illegal.
“Officer Ottey unlawfully arrested [the complainant] in violation of the Fourth Amendment and BFD policies and procedures,” Nims wrote in his letter Gramaglia.
In December, 2019, Ottey pulled over a man for excessive window tinting and found that he had an order of protection against him. Ottey told the attorney general’s office that he asked whether a passenger in the car was the person who was subject to the protective order, and when the driver said, “Wrong baby mama, buddy, you thought you had something,” he wrote seven tickets, four for excessive window tinting and three more for other equipment violations.
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The driver “just wanted to be how he was and didn’t want to cooperate with me and I was just doing my job so I just gave him the tickets,” Ottey told the attorney general’s office, according to Nims’ letter.
The driver filed a complaint, saying that Ottey “jumped up and down” during the stop and told him that he would be getting tickets, Nims reported.
Instead of Internal Affairs, the complaint was handled by Testa, who recommended exoneration, saying he could “hardly believe that the officer would ‘literally’ jump up and down and tell [the complainant] that he was about to give him a bunch of tickets,” Nims wrote in his letter to Gramaglia. The captain said that he had “observed Officer Ottey during traffic stops in the past and had always found him to act in a professional manner,” according to the letter.
The attorney general’s office questioned Testa’s objectivity in reviewing the case as well as the earlier one that resulted in the captain recommending exoneration for Ottey while giving the complainant advice on how to handle similar events in the future.
“Two of the internal investigations addressed in this letter led by Capt. Testa relied on the investigator’s personal impressions of the subject officer, rather than an impartial analysis of the facts,” Nims wrote. “The agency should provide training to Capt. Testa on fairness and impartiality in investigations.”
In the latter case, the attorney general decided that seven tickets, including four for window tinting, was too many.
“As explained above, excessive ticketing can impose an unnecessary financial burden on community members, erode community trust in law enforcement and allow for retaliatory and biased policing,” Nims wrote.
Ottey told the attorney general’s office that he changed his ticketing practices after a supervisor told him and other officers not to issue multiple tickets for such offenses as unsafe tires and excessive tint.
Hand sanitizer
Ottey received a reprimand after spraying someone with hand sanitizer in April, 2020.
According to Nims’ letter, the man who was sprayed had been using his phone to video officers, who were talking with neighbors. Footage captured Ottey asking the man whether he wanted hand sanitizer and being told no, Nims wrote. Ottey then sprayed the man, Nims reported. Ottey also refused to give his badge number to the man who was sprayed, according to Nims’ letter.
The man said that Ottey sprayed him in the face; Ottey said that he sprayed the man on his hands, Nims wrote. Ottey got a reprimand after acknowledging that he had sprayed the man with sanitizer and that he had refused to provide his badge number. The attorney general’s office wrote that the First Amendment allows civilians to record police officers from a reasonable distance and that Ottey’s actions violated department policy.
Going forward
In addition to recommending that the department review Ottey’s traffic stops and his use of force for the next two years. Nims told Gramaglia that the department should train Ottey on unlawful search and seizures, use of force, de-escalation techniques, what police can do or say when contacting citizens and what constitutes probable cause for making arrests on suspicion of disorderly conduct and obstruction of governmental administration.
“The incidents described above constitute a pattern of Fourth Amendment violations (wrongful arrest and excessive force) and First Amendment retaliation,” Nims wrote. “Importantly, whether BPD found wrongdoing or not, Officer Ottey was not provided with supplemental training or resources to effectively change his behavior.”
