Judge overturns firing of pepper-spraying cop

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Warning: This video contains graphic content. On March 25, 2020, Buffalo police officer Kevin Murphy pepper-sprayed and arrested Lakisha Neal. Viewer discretion is advised.

A state Supreme Court judge has thrown out an arbitrator’s decision upholding the termination of a Buffalo police officer fired after dousing a woman with pepper spray amid a string of profanity.

The city now must decide whether to reinstate former officer Kevin Murphy, according to a lawyer for the Buffalo Police Benevolent Association, which sued the city to overturn the firing. 

Former Police Commissioner Byron Lockwood fired Murphy after he dropped a series of f-bombs on Lakisha Neal, grabbed her by an arm, led her to a police car, then twice deployed pepper spray during a 2020 encounter outside a Dartmouth Avenue house.

Murphy had suspected Neal of calling police and falsely telling dispatchers that someone had a gun.

An arbitrator upheld the firing, writing that Murphy “jumped to conclusions and immediately decided that Neal was a suspect, never considering she may have just been an innocent party in the situation.”

Supreme Court Judge Amy Martoche ruled in an Aug. 20 decision that arbitrator Jeffrey Selchick improperly failed to consider testimony from three witnesses, including Officer Allan May, who teaches use of force techniques at the department’s training academy, retired Lt. Michael Alberti, who worked in internal affairs, and Lockwood.

Lockwood had such little experience with use of force that his testimony shouldn’t be considered, PBA lawyers argued during arbitration proceedings.

Nonetheless, Lockwood during an arbitration proceeding agreed that Neal’s verbal resistance to Murphy justified the officer physically removing her from a porch, union lawyer Rodney Personius wrote in a brief urging Martoche to overturn the arbitrator’s decision that upheld the firing. Lockwood also acknowledged that Neal continued resisting Murphy, even after she was pepper-sprayed, Personius wrote.

“In all, he (Lockwood) was in agreement that, despite his personal views to the contrary, Officer Murphy had been authorized under the city’s use of force policy in administering pepper spray during his encounter with the subject,” Personius wrote.

Alberti, a witness for the city, testified that de-escalation techniques typically aren’t an option in situations where officers believe that firearms might be present, Personius wrote in his court brief.

May, during an arbitration hearing, testified that Neal had resisted Murphy’s orders from the time he first encountered her while she was standing on a porch to the point where she pulled an arm away while he attempted to handcuff her, which justified pepper spray, Personius wrote in his brief.

“The expert testimony of each witness directly contradicted the conclusion of the arbitrator,” Personius told Investigative Post in an email. “He was only able to reach that contrary result by disregarding the testimony of each of these three witnesses. … The very basic premise is that an arbitrator does not have the authority to randomly refuse to consider relevant evidence. That is what happened here.”

Personius in court documents noted that officers dispatched to the house had been told a gun was present.

 “Nothing is more significant,” Personius wrote in his brief. “Under the facts shown on the body-worn camera footage, Officer May testified that it would have been neither practical nor reasonable for Officer Murphy to attempt de-escalation techniques.”

Personius told Investigative Post that the city could put Murphy back on the force or, alternatively, ask the Fourth Appellate Division to overturn Martoche’s decision, or attempt to hold a new arbitration proceeding on the same issues.

Arrianna Hart, a lawyer in the corporation counsel’s office who defended the lawsuit filed by the PBA on behalf of Murphy, declined comment.

Murphy had a history of complaints filed against him prior to his dismissal in involving allegations ranging from rudeness to excessive force.

Bruce Rushton