Officer in Open Door Mission shooting tied to 'brutal' 2015 police beating in lawsuit

The Rochester police officer who shot and killed a man armed with a knife earlier this month also is a defendant in an ongoing 2018 lawsuit where a man was "brutally beaten" by three officers outside a South Wedge convenience store. The incident was captured by four surveillance cameras.

Officer Matthew Drake, who is on paid administrative leave after he shot Tyshon Jones five times March 10 outside the Open Door Mission, was one of three officers who assaulted David Vann on Sept. 4, 2015, a 2018 lawsuit alleges.

According to the lawsuit, Vann, who was later acquitted of second-degree assault, was seriously injured during his arrest by Drake, Jeffrey Kester and Steven Mitchell. Instead, the Rochester Police Department focused the narrative of the arrest on injuries suffered by two of the cops.

Drake's involvement in the Vann incident is not listed in the city's public police disciplinary database, presumably indicating that Drake wasn't reprimanded over the Vann arrest since the website only shows incidents that police deemed to be substantiated or founded.

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"The failure of the City and RPD to investigate or discipline the defendant officers in this incident is part of a longstanding, entrenched policy, pattern and custom of deliberate indifference to RPD officers’ use of excessive force," lawyer Elliot Shields, who is representing Vann, wrote in a 2018 filing.

In an attempt to get a fuller picture of the incident and of Drake's career, the Democrat and Chronicle filed a state Freedom of Information request. The request asked for information regarding Drake's disciplinary records, commendations, yearly appraisals, self evaluations, training certifications and other documents.

The city has not responded to this request, but a similar request seeking information about other officers at the West Main Street scene was denied by City Corporation Counsel Tim Curtin. Curtin instead provided a link to the city's public online disciplinary database.

Both the city and the police department declined comment, citing pending litigation and ongoing internal investigations. A request to speak with Drake also was denied.

The lawsuit is pending. Shields recently filed a motion for discovery sanctions, stating the city has failed to turn over all records due to be delivered by early March. There is a status conference scheduled for April.

Mini-mart confrontation

Officers fabricated evidence against Vann, forced witnesses to sign false sworn statements, suppressed and destroyed evidence favorable to Vann and sought prosecution against him, the lawsuit alleges.

The lawsuit states Vann was jailed for five months, including a month in solitary confinement, and the prosecution took 17 months. A jury acquitted Vann on Feb. 16, 2017.

In its initial news release, the police department stated Vann assaulted two officers during a report of customer trouble at the South Wedge convenience store. The department highlighted the officer injuries and said both Drake and Kester were taken to area hospitals for treatment. It made no mention of the injuries Vann suffered.

The lawsuit and surveillance footage revealed a different version of events.

At 11 p.m. Sept. 4, 2015, Vann purchased a "loosie" cigarette for 75 cents at A&Z Market, 439 South Ave. He was short-changed $7 during the transaction and requested the remainder.

The store owner refused and then a store employee pushed Vann out of the store, the lawsuit states. As Vann started walking home, the employee came outside and offered to give Vann his change.

Drake arrived at the store as Vann was re-entering. Vann told the officer he was short-changed. Mitchell got to the store as Vann was speaking with Drake. Kester then arrived.

Drake told Vann to follow him out of the store and Vann complied. Mitchell grabbed Vann in the store doorway and stopped him from exiting.

Vann told the officers he went to the store on a daily basis and was overcharged for several weeks. (The lawsuit notes the store owner was charged a month later with misuse of food stamps, a felony.)

The officers should've been aware of the ongoing fraud investigation, Shields argued in the filing. That would've alerted the officers that Vann's complaint was credible.

Allegation of a cover up by officers

Vann was immediately detained outside the store by the officers. The officers lacked probable cause to believe Vann had committed any crime, Shields argued.

Surveillance footage shows Kester and Mitchell handcuffing Vann outside the store. Kester dragged Vann toward a metal bench, and Mitchell and Drake pushed Vann from behind, causing Vann's head to slam into the bench, footage reveals.

Kester fell to the ground and broke his leg.

"In retaliation for Kester being injured, Mitchell proceeded to brutally beat Mr. Vann for approximately two minutes," the lawsuit states.

Drake "failed to intervene" on Vann's behalf "despite having a realistic opportunity to do so," Shields argued.

Drake joined forces with Mitchell at this point and "violently body-slammed" Vann onto the sidewalk. Drake dislocated his shoulder during the incident, police said in a news release.

Mitchell retaliated after Drake was injured, Shields argued. The officer grabbed Van "by the testicles and shirt, picked him up, and slammed his body face-down on the sidewalk," the lawsuit states.

Vann was pulled to his feet and officers "dragged his limp body to an RPD vehicle," where he was put inside. Officers refused to take Vann to the hospital as he requested. Instead, he was taken to the Monroe County Jail.

No immediate medical attention

The lawsuit argues that Mitchell and other officers took Vann from the police vehicle and punched and kicked him numerous times after arriving at the jail. The officers lied about how Drake and Kester were injured and told jail staff to not give Vann the medical attention he needed, the lawsuit states.

Vann immediately was placed in solitary confinement. While at the jail, the lawsuit stated, Vann was provided no prescribed medications.

He later was taken to a medical facility and held there for four months. Kester, Drake, and Mitchell, according to the lawsuit, "immediately took measures to cover up the unlawful actions."

Other officers on scene viewed surveillance footage and none of them stated that the footage contradicted statements made by the store owner, the employee, Drake, Mitchell or Kester. Technicians didn't collect all of the video evidence from the scene. Shields argued they selectively chose what portions of the footage would be preserved.

Officers fabricated paperwork to make sure accounts were consistent and also coerced witnesses to sign false written statements, Shields stated. One of the witnesses was on parole at the time of the incident and was violating his curfew.

The store employee, who had a previous felony and was the subject of another ongoing criminal investigation, declared, "I’m so thankful the officers came. I do not feel they were inappropriate whatsoever.”

Surveillance footage undercuts officers

Kester and Drake each signed felony complaints accusing Vann of assaulting and injuring them. The complaints stated Vann "twisted, turned, pulled away and thrashed around in a violent manner causing the defendant and three police officers to fall to the sidewalk." This caused Kester to break his right leg and Drake to dislocate his left shoulder.

The assistant district attorney instructed Mitchell, Kester and Drake on how to testify to "nullify their constitutionally objectionable conduct."

Drake lied to the grand jury, the lawsuit states. He said Vann wasn't handcuffed until he was brought to the ground the first time. He stated Vann "fought with officers." Drake also said Vann somehow got one of his hands free of the handcuffs and needed to be re-handcuffed. The surveillance footage demonstrated these assertions were false, Shields argued.

During the criminal trial, Drake again lied, the lawsuit stated. Drake asserted Vann "actively resisted arrest." He also said Mitchell told him that Vann slipped out of one of his cuffs and "was reaching for his waistband."

At the trial, Kester, Mitchell, and Drake each said the "security camera video was a fair and accurate depiction of the event." The jury requested to review the spot where Vann was handcuffed. The footage was paused here, Shields wrote. Eight minutes after viewing the footage, the jury reached a verdict. Vann was found not guilty on all charges.

Shields said the city and RPD never conducted an investigation into incident.

The officers failed to recognize Vann "was suffering from a mental health condition" when they were interacting with him, Shields said. The officers were not properly trained on identifying mental health-related issues and were not taught how to properly interact with these individuals.

The lawsuit was filed two days after two officers were suspended in the assault of Christopher Pate. Both officers — Spenser McAvoy and Michael Sippel — were ultimately fired. Sippel was convicted by a judge of third-degree assault, a misdemeanor.

Three separate incidents — one in 2011, another in 2013 and a final one in 2019 — resulted in Drake receiving letters of reprimand. They are the only incidents listed in the city's public disciplinary database.

Contact Will Cleveland at wcleveland@gannett.com. Follow him on Twitter @willcleveland13, Facebook @willcleveland13, and Instagram @clevelandroc. Thanks to our subscribers for supporting quality local journalism. If you aren’t a subscriber, please consider a digital subscription.

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This article originally appeared on Rochester Democrat and Chronicle: Officer in Open Door Mission shooting tied to 2015 beating of suspect