Federal jury rules that police actions were justified in shooting of city man

A federal jury Thursday decided that Rochester police did not act improperly in a police shooting of a city man — a case that earlier challenged the efficacy of ShotSpotter technology.

Silvon Simmons, who was shot three times by Rochester Police Officer Joseph Ferrigno in 2016, sued the city and numerous police officials. Simmons was accused of first firing at Ferrigno – he was charged with aggravated assault and attempting to kill a police officer – and his trial and ultimate acquittal largely hinged on the reliability of ShotSpotter.

After the acquittal, Simmons brought the civil suit in federal court, contending that he was unarmed and was shot in the back after an unjustified stop by police.

The outcome of the criminal case against Simmons was partly decided by the technology, and its possible weaknesses as a crime-solving tool. Meanwhile the civil jury also heard the ShotSpotter recordings of shots fired and decided in the city's favor.

Simmons also sued ShotSpotter, but U.S. District Judge Frank Geraci Jr. dismissed those counts in the civil lawsuit.

Geraci determined that there was not evidence of a conspiracy between the police and the ShotSpotter company, as alleged in the lawsuit, and that the pretrial evidence and testimony supported the claims that police and company officials acted properly in their interactions.

The jury Thursday only deliberated several hours before returning a verdict in favor of the city and its police.

What was role of ShotSpotter?

The ShotSpotter system uses microphones and transmitters in neighborhoods to alert police to possible shootings. Prosecutors contended that the system captured the audio of multiple shots – one initially from Simmons and the three from Ferrigno.

Central to the criminal case was the human element of the technology, as company employees sometimes re-examine audio to determine what the sounds may have been and whether the initial technological identification was correct. In this case, the technology initially determined the shooting sounds were likely generated by the blades of an overhead helicopter.

After being contacted by police, ShotSpotter technicians listened to the audio and decided the sounds to be gunfire, but even that determination was inconsistent. ShotSpotter technicians said at first there were three shots, then increased the number to four, then five. (Ferrigno fired four shots.)

The technicians said they heard more gunfire by listening to longer segments.

The night of the shooting

The Simmons case also became a centerpiece of some national news stories in the aftermath of his acquittal – coverage that focused on past claims against Ferrigno alleging the abuse of suspects. He was internally cleared in those cases, and media stories highlighted the incidents when questioning police disciplinary systems.

Ferrigno has left the force and now works for a private security firm.

The night of the shooting, police misidentified Simmons and his vehicle; they were looking for another person and the individual’s car as part of a criminal investigation. Police followed Simmons car, without activating lights or siren, then Simmons ran from the car after pulling into a driveway.

Ferrigno chased Simmons before the shooting.

A 9mm firearm was located about five to 10 feet from Simmons. Police said they moved Simmons because they did not want him near the gun.

But even that evidence – the presence of the firearm – was problematic. There was no DNA on the gun linking it to Simmons, no bullet was found that could be connected to the 9mm (it could have traveled some distance), and there were not the usual signs that the 9mm had been fired.

Simmons has said he also asked to be tested for gunfire residue, but no testing was done.

The civil and criminal cases

Simmons’ civil attorney, Charles Burkwit, said during the civil trial that the lack of DNA on the gun and the failure to test for gunfire residue backed Simmons' version of events.

At a 2018 trial, a jury acquitted Simmons of attempting to kill Ferrigno, but convicted him of criminal possession of the 9mm found near him.

Later, Monroe County Court Judge Christopher Ciaccio dismissed that conviction, leading to a full acquittal of Simmons.

Ciaccio ruled that the jury clearly relied on the ShotSpotter technology, but the technology – at least when used in this particular case – did not provide sufficient evidence to support the criminal charges.

“The case did not have buttressing evidence,” Ciaccio said.

Simmons was offered plea agreements but chose in 2018 to take the case to trial.

His criminal attorney, Assistant Public Defender Elizabeth Riley, said then that Simmons immediately chose to go to trial, risking a lengthy sentence of imprisonment.

Burkwit said Friday that he and Simmons are considering an appeal of the verdict or a possible appeal of the decision to limit ShotSpotter testimony.

This article originally appeared on Rochester Democrat and Chronicle: Federal jury rules that police actions were justified in shooting of city man