On Wednesday afternoon, Artvoice learned that Erie County District Attorney Frank A. Sedita III had filed notice of his intention to appeal Judge Joseph A. Fiorella’s December 20 dismissal of all charges brought against Nate Buckley.

Buckley was arrested on April 8, 2011 in front of M&T Bank’s Fountain Plaza complex on Main Street in Buffalo as he and 40 to 50 others were engaged in a protest against war-promoting investments they accused the bank of making. Bank officials responded by calling Niagara Frontier Transportation Authority police to the scene, three of whom arrested Buckley. He was eventually charged with a violation, trespass, and misdemeanor counts of obstructing governmental administration and resisting arrest, the last two each punishable by a maximum one-year imprisonment.

Last spring, Buckley’s case went to trial and the jury had begun to deliberate when Fiorella called a halt to their work, after a juror illegally sent a private message to the judge about another pending matter before him.

In his December 20 ruling, Fiorella expressed disapproval of the bank’s position and particularly of the conduct of Buckley’s arrest. Fiorella agreed with the defense’s most important arguments in its motion to dismiss “in the interests of justice,” including its assertion that “this case should never have been brought.”

Fiorella’s decision accepted the bulk of the defense argument, which was, in the words of defense attorneys Daire Brian Irwin and Michael Kuzma, that “the defendant’s intent was not to trespass, but rather to exercise rights guaranteed by the…United States Constitution, and…the New York State Constitution.”

The defense was prepared to argue at trial that Buckley had vacated the plaza when told to do so. “What we have here,” wrote Irwin and Kuzma, “is trespass on public property with overzealous NFTA officers attempting to affect [sic] an arrest on individuals for legally exercising their constitutional rights.”

Fiorella was quite explicit in his condemnation of the way the incident was handled by NFTA police. Citing the bank’s own surveillance video, he said that Buckley had complied with an order to leave the disputed area, but, Fiorella went on, “Officer [Richard] Russo followed the defendant onto the public sidewalk, grabbed the defendant, and when he struggled, Officer Russo beat the defendant with his nightstick. Even though the defendant had been subdued against the wall, and had stopped struggling, Officer Russo pepper-sprayed the defendant in the face.”

(In an interview after the December 20 hearing, Buckley said the judge’s general description of what had occurred during his arrest was accurate, but that Fiorella had partly confused Richard Russo with Adam Brodsky, the officer Buckley said physically abused him.)

Fiorella observed that “certain types of police actions manifest a disregard for cherished principles of law and order” and raised the question “whether the police themselves engaged in improper conduct repugnant to a sense of justice.” And he gave an answer: “This Court finds that Officer Russo did engage in improper conduct which is repugnant to this Court’s sense of justice.”

Therein may lay Sedita’s rationale for appealing Fiorella’s ruling, thus committing more of his office’s time and resources to a prosecution that has been fruitless thus far, and the consequences of which seem picayune in comparison to the more serious criminal cases he considers (and often rejects) taking to court every week. Fiorella’s condemnation of the officers’ behavior may lay the NFTA open to a civil lawsuit by Buckley, should he choose to pursue one.

At press time, neither the DA’s office nor the NFTA had responded to a request for comment. The DA’s office has been unresponsive to efforts to determine the hours and resources it has committed to Buckley’s prosecution.