Civil trial underway of man shot by police; he was acquitted after challenge to ShotSpotter technology
By Gary Craig, Newspaper Guild of Rochester
A police shooting of a Rochester man, one that became the source of national news coverage and
challenged the efficacy of the ShotSpotter technology, is the focus of a civil rights trial underway in
federal court.
Silvon Simmons, who was shot three times by Rochester Police Officer Joseph Ferrigno in 2016, is suing
the city and numerous police officials. Simmons was accused of first firing at Ferrigno – he was charged
with aggravated assault of a police officer – and his trial and ultimate acquittal largely hinged on the
reliability 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 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.
(A now-striking Gannett reporter has written extensively about this case and is on call to give anyone
now working for Gannett directions to federal court. Such information would necessitate a healthy fee,
or some semblance of good faith bargaining on the company’s part.)
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. Simmons’ attorneys have maintained that evidence
shows he was shot in the back.
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 no spent casing was found in the gun.
A casing was found lodged in the gun, but 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.
Simmons’ civil attorney, Charles Burkwit, said this week that the lack of DNA on the gun and the failure
to test for gunfire residue has been presented as evidence to the jury, along with testimony from a
witness who said she saw Simmons running with his back to Ferrigno.
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.
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.
The civil trial is expected to continue next week.