Silvon S. Simmons vs. Joseph M. Ferrigno, II, Samuel Giancursio, Mark Wiater, Christopher Muscato, Robert Wetzel, Michael Ciminelli, John Does 1-20, City of Rochester, Shotspotter, Inc., SST, Inc., John Does 21-30 and Paul C. Greene
United States District Court, Western District of New York
Case No. 17-CV-6176
(The following information is contained in the Complaint and/or obtained from the criminal trial testimony)
THE INCIDENT
The Shooting
On Friday April 1, 2016 at approximately 8:55 p.m., Silvon Simmons left his home with his next door neighbor who drove a Chevy Impala to buy beer at a local store. While Mr. Simmons was riding to and from the store, he did not observe any police vehicles pass by him. When Mr. Simmons returned home at approximately 9:09 p.m. that evening, his neighbor backed the Chevy Impala into the driveway and shut it off. As Mr. Simmons was exiting the vehicle, Officer Joseph M. Ferrigno drove up, suddenly stopped his Rochester Police car along the curb and shined a bright spotlight at Mr. Simmons who had already exited the vehicle. Blinded by the spotlight in his face, Mr. Simmons could not identify the police vehicle or person who suddenly got out of the vehicle and was running towards him with his gun drawn and pointed at him. At no time did Officer Ferrigno identify himself as a police officer. Not knowing who was chasing him at gunpoint, why he was being chased and fearing for his life, Mr. Simmons immediately started running down the driveway towards his back yard. When Mr. Simmons ran down his driveway, he was not armed with a gun or any weapon. As Mr. Simmons was running down his driveway towards his back yard, Officer Ferrigno fired his police issued Glock .45 caliber hand gun at him four (4) times striking him three (3) times, once behind in his back, left buttock and right upper leg. A neighbor across the street witnessed the shooting and she testified during Mr. Simmons’ criminal trial that she saw Officer Ferrigno standing in the driveway below a lit window when she heard four (4) gun shots fired. She further testified that Officer Giancursio had not yet arrived on scene at the time Mr. Simmons was shot. After Mr. Simmons was shot the third time by Officer Ferrigno, Mr. Simmons dove over a fence which led to his back yard, he landed on the ground and attempted to crawl to his back door. Critically wounded, Mr. Simmons was physically unable to crawl to the back door of his home so he decided to lay face down on the ground and “play dead” since he could not get away from his shooter and feared he would be shot again and killed. Mr. Simmons was lying face-down on the ground, playing dead, in the back yard when he heard Officer Ferrigno yell out “I got him!”. When Mr. Simmons was trying to “play dead”, he accidentally took a deep breath due to pain and Officer Ferrigno said “What the f___k” and kicked Mr. Simmons in his back multiple times. Officer Ferrigno kicked Mr. Simmons in the back multiple times and said to him “Shut the f____k up before I blow your brains out”. Officer Ferrigno then said to Mr. Simmons while pointing a gun to his head “I should just finish you off”. After Mr. Simmons was shot, Officer Ferrigno, called dispatch and reported “Shots Fired”. When the Shots Fired Call was made by Officer Ferrigno to dispatch, he did not claim that Mr. Simmons had fired a gun at him, he did not claim that any other person had fired a gun at him, he did not claim that he was shot or injured in any way and he did not
claim that he was concerned that he may have been shot or injured. Approximately one (1) minute after the initial Shots Fired call by Officer Ferrigno, Officer Giancursio radioed to dispatch “We have a gun in the back yard here. We’re approximately ten (10) houses up north on Immel from Jay”. It is important to note that the location where Mr. Simmons was shot on Immel Street is only the second house north on Immel Street from Jay Street. There are no 911 Emergency Communication recordings where Officers Ferrigno or Giancursio stated anyone fired a gun at a police officer. At no time did Officers Ferrigno or Giancursio report to 911 Emergency Communications that a gun had been fired at them by Mr. Simmons or any other person.
Officer Giancursio Arrives On Scene
Shortly after the Shots Fired call was made by Officer Ferrigno, Officer Samuel Giancursio arrived on scene. After Mr. Simmons was shot and was lying in the back yard, Officer Ferrigno went over to the driveway area where Mr. Simmons heard him speaking with another police officer believed to be Officer Giancursio. As Mr. Simmons lay on the ground in back of his home, he heard Officer Ferrigno speaking with another police officer believed to be Officer Giancursio and heard Officer Ferrigno say “How should we handle this” and “How should we call this in”. After Officers Ferrigno and Giancursio spoke at the end of the driveway, they went into the back yard where Mr. Simmons was lying and kicked him. When Officer Giancursio went in the back yard, Mr. Simmons stated to him “I ain’t dead. I don’t have a gun”. When Officer Giancursio approached Mr. Simmons in the back yard, he searched and handcuffed him as he layed on the ground. Officer Giancursio testified at the criminal trial that he did not see or find a gun on Mr. Simmons when he approached, searched and handcuffed him and it was Officer Ferrigno who told him he found a gun on the ground after Mr. Simmons was handcuffed. To the contrary, Officer Ferrigno testified at the criminal trial that he saw the gun and brought it to Officer Giancursio’s attention as they initially approached Mr. Simmons in the back yard before he was searched and handcuffed. After Mr. Simmons was shot three (3) times by Officer Ferrigno and handcuffed by Officer Giancursio, he was dragged by one or both of them further into the back yard where it was even darker. An ambulance was dispatched and multiple Rochester police officers started arriving on scene. As Mr. Simmons was being loaded into the ambulance, he knew that Defendant Ferrigno had accused him of firing a gun at him so he requested Rochester Police officers, including Defendant Christopher Muscato, to test him for gun powder residue but his request was denied.
The Mystery 9 mm Ruger is Found
After Mr. Simmons was shot three (3) times, dragged further into the back yard and multiple Rochester police officers responded to the scene, a Sturm Ruger P85 9mm handgun (hereinafter “Ruger Handgun”) was allegedly found on the ground in the back yard. The Ruger Handgun had an empty shell casing inside the chamber, an empty
magazine and it was not found in the “lock back” position as it should have been. Since the magazine was empty, when the last bullet was fired and left the magazine, the slide on the gun should have automatically gone into the “lock back” position. The Ruger Handgun allegedly recovered in the back yard area did not belong to Mr. Simmons and Mr. Simmons never touched, held or discharged this weapon.
During its investigation, the Rochester Police Department recovered four (4) shell casings on the ground in the back yard from Officer Ferrigno’s police issued Glock .45 caliber hand gun. It is believed that the four (4) shell casings from Officer Ferrigno’s police issued hand gun were moved from the driveway area, where he fired at Mr. Simmons, and into the back yard since the witness across the street testified that she saw Officer Ferrigno fire his gun in the driveway below a lit window. Besides a spent bullet casing found inside the chamber of the Ruger Handgun, the Rochester Police Department did not recover any discharged bullets or other casings from the Ruger Handgun. When the Rochester Police Department allegedly recovered the Ruger Handgun in the back yard, there was no objective evidence that it had recently been fired. Gun powder residue testing of Mr. Simmons and his clothing was never conducted by the Rochester Police Department.
Following the shooting, the Ruger Handgun was tested by the Monroe County Crime Lab. Mr. Simmons voluntarily gave a DNA swab to be compared to the DNA profile recovered from the Ruger Handgun and Mr. Simmons was excluded as a possible contributor to the major component of the DNA mixture obtained from the Ruger Handgun. Mr. Simmons’ fingerprints were not found on the Ruger Handgun. The Monroe County Crime Lab fired the Ruger Handgun multiple times into a water tank and all of the bullet casings properly discharged from the gun. When the last bullet was fired from the Ruger Handgun, the slide of the gun automatically went into the “lock back” position like it was supposed to. Mr. Eric Freemesser from the Monroe County Crime Lab testified at Mr. Simmons’ criminal trial that the Ruger Handgun properly ejected all bullet casings when he fired the gun five (5) times without malfunction. He further testified that he expected to see the recovered Ruger Handgun with the slide locked back since the magazine was empty when the gun was discovered. Mr. Freemesser testified that the Ruger Handgun was a properly functioning gun when he tested it. He also testified that he did not receive a swab from Mr. Simmons’ hand or the arm of his sweatshirt for gun powder residue testing but this could have been done if requested by the Rochester Police Department. Mr. Freemesser clarified that had Mr. Simmons fired the gun, he would expect to find gun powder residue on the sleeve of the sweatshirt Mr. Simmons was wearing the night of April 1, 2016. Mr. Freemesser also testified that had he tested Mr. Simmons sweatshirt, he would be able to calcuate how far away Officer Ferrigno was from Mr. Simmons when he fired at him by analyzing the gun powder residue pattern around the bullet hole on the back of his sweatshirt. Mr. Freemesser testified that this testing could have been performed but the Rochester Police Department never gave the Monroe County Crime Lab Mr. Simmons’ sweatshirt for gun powder residue testing.
MR. SIMMONS IS TRANSPORTED TO STRONG MEMORIAL HOSPITAL AND AGAIN
REQUESTS TO BE TESTED FOR GUN POWDER RESIDUE BUT IS DENIED
Mr. Simmons was transported to Strong Memorial Hospital in critical condition due to his gunshot wounds. He suffered gunshot wounds to the left buttock, lower back, right medial and lateral thigh areas, a moderate sized left hemopneumothorax requiring placement of chest tubes, a severely comminuted left posterior 10th rib fracture with bony fragments, comminuted fractures of the lateral sixth and seventh ribs, multiple contusions, a fracture of the posterior wall and column of the left acetabulum with extensive comminution, 1.3 cm pseudo aneurysm of the right superficial femoral artery, bullet fragment lodged in the left pelvic sidewall just distal to the branching of the main portion of the left iliac artery together with other physical and psychological injuries.
After Mr. Simmons arrived at and was admitted to Strong Memorial Hospital, he again made requests to Rochester police officer Christopher Muscato and other officers to check his hands for gun powder residue since he knew Officer Ferrigno falsely accused him of firing a gun at him but these requests were again denied. While intubated and unable to speak, Mr. Simmons made a written request to Officer Christopher Muscato to check his hands for gun powder residue but was again refused. Officer Muscato then told Mr. Simmons to stop writing questions. The final page of this narrative contains a photograph depicting a message Mr. Simmons wrote to medical staff and the Rochester police officers at Strong Memorial Hospital requesting he be tested for gun powder residue. At no time was Mr. Simmons’ person or his clothing tested for gun powder residue.
Mr. Simmons underwent emergency surgery and medical treatment for his gunshot wounds and other injuries. When Mr. Simmons was admitted at Strong Memorial Hospital, he was intubated, placed and remained on a ventilator until he was weaned off of it on April 4, 2016. For the duration of Mr. Simmons’ admission at Strong Memorial Hospital from April 1, 2016 through April 11, 2016, he remained under arrest and in the custody of the Rochester Police Department.
RPD CALLS SHOTSPOTTER LOOKING FOR GUNSHOTS
Shotspotter is a gunshot detection system with sensors set in undisclosed geographic locations in the City of Rochester. Paul C. Greene is the manager of forensic services for Shotspotter, a California based company, and testified at Mr. Simmons’
criminal trial. When gunfire is detected, Shotspotter reports to the police 911 center to dispatch a patrol car to an accurate location where gunfire is detected. There are 101
cities which subscribe to Shotspotter worldwide, 97 within the United States. Shotspotter was installed in Rochester in 2006 and there are 126 sensors in Rochester covering 7.2
square miles. The City of Rochester pays a subscription fee of $130,000 per year to Shotspotter for its gunshot detection services.
Shotspotter’s reliability and accuracy is questionable with an alleged accuracy rate of only 80% within a 25 meter range from the shooting. Shotspotter’s guarantee of accuracy was invented by the company’s sales and marketing team. According to Shotspotter, in one out of five times, the Shotspotter system is not accurate. Shotspotter allows a margin of error because its technology simply cannot detect everything and cannot detect everything accurately. Shotspotter’s reliability and accuracy is also questionable since intervening factors such as buildings, hills, valleys, foliage, trees, leaves, bushes, traffic and construction noise and other extraneous noise impacts Shotspotter’s ability to collect data, currently locate it and identify whether or not a “hit” was actually a gunshot or not. It takes four (4) sensors to participate in detecting and locating a single shot. All Shotspotter audio data is saved indefinitely and never deleted. Shotspotter and the Rochester Police Department have the ability to alter the audio file during the post incident processing of a gunshot incident.
On April 1, 2016 at approximately 9:00 p.m., the Shotspotter System was on but in the “squelch mode” and did not alert the Rochester Police Department or the 911 call center that there had been a shooting in the vicinity of Mr. Simmons’ home on Immel Street. On April 1, 2016 shorty after the incident, Officer Robert Wetzel from the Rochester Police Department notified Shotspotter in an email correspondence that the Rochester Police Department had an officer involved shooting in the area of 10 Immel Street and approximately 3 to 5 rounds were fired. Officer Wetzel provided ample information to Shotspotter including location, time, number of possible shots and the caliber of the weapons allegedly fired during the incident. In April 2014, Officer Wetzel was selected by the Rochester Police Department to go to Shotspotter headquarters in Newark, California to go through a one week training program where he became a “super user” as identified by the company to be the liaison for the department and to train other police officers and investigators.
On April 1, 2016 at approximately 9:15 p.m., Lieutenant Mark Wiater of the Rochester Police Department went to the scene of the Simmons’ shooting and then left around midnight. Wiater was a lieutenant in the Central Investigations Division of the Rochester Police Department and oversaw the Shotspotter program for two (2) years. Wiater testified that he then returned back to the fourth floor at the Central Investigations Division of the Rochester Police Department, logged onto a computer and opened a chat session with Shotspotter. On April 2, 2016 between 12:30 a.m. and 1:00 a.m., Wiater requested Shotspotter to look into the incident, by opening a larger window of time to see if they detected any other gun fire. Wiater acknowledged during Simmons’ criminal trial that
Shotspotter initially detected four (4) shots and he wanted them to open a larger window to check to see if there were any other gunfire that may have been detected.
SHOTSPOTTER CREATES AND MODIFIES REPORTS AT RPD’S REQUEST
Shotspotter generated a Detailed Forensic Report dated April 7, 2016 which noted that on April 1, 2016 at 9:09:38 p.m., “4 rounds” were detected, the incident was “auto acknowledged and not alerted because squelch mode was enabled at time of
detection”. The Shotspotter Detailed Forensic Report dated April 7, 2016 noted that on April 2, 2016 at 12:55:57 a.m., the incident was “Reclassified to Multiple Gunshots from helicopter, Reason: per customer. OIS” (officer involved shooting), and the “Number of rounds updated from 3 to 4”. Shotspotter Review Operator R. Bresler noted that the incident was reclassified to multiple gunshots from helicopter and changed the number of rounds fired from 3 to 4.
Paul Greene from Shotspotter acknowledged at Simmons’ criminal trial that Shotspotter was only alerted to the April 1, 2016 incident as a result of being alerted by the Rochester Police Department and Shotspotter only changed its Detailed Forensic Report after being provided information from and after being requested to do so by officers of the Rochester Police Department. Mr. Greene acknowledged that he reviewed customer support chat emails which indicated that somebody from the Rochester Police Department contacted Shotspotter at 9:05 p.m., Pacific Standard Time, asked Shotspotter to try to find additional shots and Shotspotter immediately reclassified the incident as multiple gunshots. Mr. Greene further acknowledged that when he listened to the audio that was presented by the dispatcher, he could hear the sound of four (4) gunshots and subsequently he was asked by the Rochester Police Department to essentially search and see if there were more shots fired than Shotspotter picked up.
Shotspotter issued a Detailed Forensic Report on April 7, 2016 which gave the times for the discharge of five (5) rounds with the first shot at 9:09:35 p.m. and the fifth shot at 9:09:38 p.m. which report implicated Mr. Simmons in the shooting. Officer Wetzel acknowledged during his trial testimony at Mr. Simmons’ criminal trial that later that day on April 2, 2016, Shotspotter responded to him that they did find a fifth gunshot after his request.
The Shotspotter Detailed Forensic Report notes “Acoustical data analysis of a gunfire is complex and not comprehensive. The conclusions above should be corroborated with other evidentiary sources such as recovered shell casings, and witness statements”.
During the criminal trial, Mr. Greene testified that there is no way to go and look at the original file that was recorded and there is no way to listen to all the audio from that day. He acknowledged that employees of Shotspotter and law enforcement customers with an audio editor can alter any audio file that’s not been locked up or encrypted. Upon information and belief, Shotspotter and/or the City of Rochester Police Department deleted and/or destroyed the spool and/or other information containing sounds pertaining to the April 1, 2016 shooting in Mr. Simmons’ case.
THE CRIMINAL ACTION AGAINST MR. SIMMONS
On April 5, 2016, Mr. Simmons was arraigned at Strong Memorial Hospital on criminal charges for Attempted Aggravated Murder in violation of New York Penal Law §110.00/125.26(1)(a)(i), Attempted Aggravated Assault on a Police Officer in violation of
New York Penal Law §110.00/120.11 and two (2) counts of Criminal Possession of a Weapon in the Second Degree in violation of New York Penal Law §§265.03(1)(b) and 265.03(3). Mr. Simmons claims that the foregoing criminal charges against him were based on the fabricated evidence by RPD and Shotspotter and the false accusations that Mr. Simmons possessed and fired a 9 mm Ruger Handgun at Officer Ferrigno on April 1, 2016. Mr. Simmons was discharged from Strong Memorial Hospital on April 11, 2016 and immediately transferred to the Monroe County Jail where he remained incarcerated until his criminal trial ended on October 26, 2017.
Mr. Simmons has alleged that the City Defendants concocted a fabricated account of the events occurring the evening of April 1, 2016 to justify the pursuit and use of excessive and deadly force against him. Defendants Ferrigno and Giancursio claim that on the evening of April 1, 2016, they were actively and aggressively pursuing a menancing suspect named Ivory Golden, who drove a gray or tan Chevy Impala and that they thought Mr. Simmons was this suspect. During the criminal case, the Court determined that Defendant Ferrigno did not have reasonable suspicion to pursue Mr. Simmons down the driveway since he was a passenger in the Chevy Impala, not the driver who was the suspected criminal (Golden). At no time did Defendant Ferrigno see Mr. Simmons engaged in any type of criminal conduct as he ran away from him towards the back yard. During Mr. Simmons’ criminal trial, Defendant Ferrigno testified that he could not see a gun in Mr. Simmons’ hand since it was so dark. He testified that as he chased “the figure”, it appeared that the figure turned and he saw a flash and heard a boom. During his testimony, Defendant Ferrigno did not and would not testify that he saw a gun in Mr. Simmons’ hand or that he saw him fire it. He would only commit to stating that it appeared the figure turned and he then saw a flash and heard a boom. Defendant Giancursio testified that he had pulled on scene and was present during the gun fire, although an eye witness across the street testified that he was not present, and that he heard a bullet whiz or tumble over his head as he stood at the end of the driveway. The Defendant Officers’ testimony was inconsistent and contradicted by the evidence and witnesses testimony at trial.
Mr. Simmons’ criminal trial began on October 2, 2017 and ended with a jury verdict on October 26, 2017. Mr. Simmons was found not guilty of Attempted Aggravated Murder (Penal Law §110.00/125.26(1)(a)(i)), Attempted Aggravated Assault on a Police Officer (Penal Law §110.00/120.11) and Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03(1)(b). By acquitting Mr. Simmons of Criminal Possession of A Weapon 2nd degree (PL §265.03(1)(b)), the jury determined that there was insufficient proof that Simmons possessed a loaded firearm with the intent to use it unlawfully against another. The jury, however, convicted Mr. Simmons of Criminal Possession of a Weapon
in the Second Degree in violation of Penal Law §265.03(3) (possessing a loaded firearm) and we believe this conviction only resulted from the Shotspotter testimony and audio of five (5) shots being fired. The Shotspotter audio and Detailed Forensic Reports were offered and received into evidence which the jury obviously relied upon in reaching their verdict. Although Mr. Simmons’ weapons conviction carried a minimum sentence of 3 ½ in
prison, Monroe County Court Judge Christopher Ciaccio immediately released Mr. Simmons from prison on his own recognizance pending sentencing.
Mr. Simmons criminal sentencing hearing took place on January 11, 2018 at which time Judge Ciaccio reversed and set aside the jury’s weapon conviction and ordered a new trial but precluded Shotspotter evidence as unreliable scientific evidence. Mr. Simmons new trial was scheduled to begin on May 31, 2018 on the remaining weapons charge but the prosecution could not proceed since it was unable to establish without the Shotspotter evidence that the firearm was loaded at the time it was allegedly possessed by Simmons. Mr. Simmons’ defense attorney moved to dismiss the indictment, the Court granted this motion and the criminal proceeding terminated in Mr. Simmons’ favor.
NATURE OF THE CIVIL ACTION
In his Amended Complaint, Mr. Simmons has alleged the above factual allegations and causes of action for:
1) §1983 False Arrest against Officers Joseph M. Ferrigno and Samuel
Giancursio;
2) §1983 Excessive and/or Deadly Force against Officers Joseph M. Ferrigno and Samuel Giancursio;
3) §1983 Conspiracy to Violate Plaintiff’s Civil Rights against all Defendants;
4) §1983 Malicious Prosecution against all Defendants;
5) §1983 Denial of the Right to a Fair Trial against all Defendants;
6) §1983 Malicious Abuse of Process against all Defendants;
7) §1983 Failure To Intervene To Protect Plaintiff’s Constitutional Rights against Officers Joseph Ferrigno, Samuel Giancursio, Mark Wiater, Christopher Muscato, Robert Wetzel, Michael Ciminelli and John Does 1-20;
8) §1983 Failure To Implement Policies, Customs and Practices against the City of Rochester;
9) §1983 Supervisory Liability/Monell claim against the City of Rochester and Michael Ciminelli for condoning a pattern of brutality and other misconduct committed by City of Rochester police officers and for maintaining and permitting official policies, customs or practices whereby such
constitutional violations occur and failing to investigate, discipline and/or remedy the wrong;
10) New York State Law claim for Battery against Officers Ferrigno, Giancursio and City of Rochester;
11) New York State Law claim for Assault against Officers Ferrigno, Giancursio and City of Rochester; and
12) New York State Law claim for Malicious Prosecution by all Defendants.
Mr. Simmons is seeking compensatory and punitive damages reasonable costs and attorney’s fees for the violation of his rights and damages sustained.
After Plaintiff’s Amended Complaint was filed, the Shotspotter Defendants served an Answer to the Amended Complaint while the City of Rochester and named Officers filed a FRCP 12(b)(6) partial motion to dismiss the third through ninth causes of action in the Amended Complaint. On August 5, 2019, Judge Michael Telesca issued a Decision and Order granting the City Defendants’ motion to dismiss the Sixth cause of action for Malicious Abuse of Process. The Court further granted the City Defendants motion to dismiss Plaintiff’s Failure To Intervene claim against Defendants Ferrigno, Giancursio, Wiater and Ciminelli but allowed this claim to go forward against Defendant Muscato who allegedly failed to check Mr. Simmons for gun powder residue after he requested he do so on multiple occasions. The Court denied the remainder of the City Defendants’ motion to dismiss. Currently, this action is in the discovery phase of litigation and it is anticipated that this case will not be ready for trial until sometime in 2023.