ORCHARD PARK, N.Y. -- The Erie County Sheriff's deputy who arrested a man during tailgating at a Buffalo Bills game last year, in a violent incident caught by a deputy's body camera, will not work this upcoming weekend's game after all.
2 On Your Side obtained a copy of the schedule, and Deputy Kenneth Achtyl, along with his partner Deputy James Flowers, were both listed as working, despite the Erie County District Attorney announcing he's looking into whether or not Achtyl put false information in a police report about the December 3, 2017 arrest of Nicholas Belsito. Such a crime could lead to jail time.
However, late Thursday afternoon, the Sheriff's Office said Achtyl was not on the most current deployment sheet and will not work the game. No further explanation was given.
Belsito's attorneys spoke exclusively to 2 On Your Side in a story that aired Thursday at 6 p.m.
"Nicholas Belsito was not intoxicated," said Attorney Aaron Glazer. "He was not a drunken, crazy Bills fan. He was extremely polite to that deputy... and he was still arrested and beaten."
Glazer, and Belsito's other lawyer Herb Greenman, said the arrest was illegal, because Belsito never committed a crime prior to Deputy Achtyl jumping out of his vehicle to initiate the arrest.
"Some type of profanity came out of his mouth," Glazer said, referring to Belsito apparently telling the deputy to do his '(expletive) job.' Belsito's friend had been detained, and he was asking Achtyl where he could go pick him up. Achtyl initially responded by saying, "Okay, well, you want to go to jail with him?" That testy exchange prompted Belsito's profanity.
Greenman says the law and appeals court cases show using a swear word is not grounds for an arrest.
"It's clearly not a crime," said Greenman. "I mean, there's obviously First Amendment protections, but the courts have also said, look, in this day and age, police need to use restraint."
Deputies Achtyl and Flowers eventually charged Belsito with disorderly conduct, resisting arrest and other counts; however, a prosecutor viewed the body camera footage and decided to drop the entire case.
Belsito's attorney have filed a Notice of Claim, and a lawsuit will follow in the coming months.
"What will you allege in that lawsuit?" 2 On Your Side's Michael Wooten asked Glazer. "We will allege assault. We will allege negligent hiring, training, supervision, retention. We will allege some Constitutional claims, including... deprivation of civil rights under color of law."
2 On Your Side reached out to the Erie County Sheriff's Office for comment. The department has a policy not to comment on cases involving pending litigation.