City Court Judge Thomas Rainbow Morse denied the motion of three homeless advocates to dismiss their charges in the furtherance of on justice. Sister Grace Miller, Tom Malthaner, and Ryan Acuff were charged with criminal trespass in the third degree after being arrested on September 15, 2014, in a second floor office in the Monroe County building on Main Street as they were attempting to reschedule a meeting with Commissioner of Human Services Kelly Reed from September 9, 2014 that had been abruptly canceled by the county.

On Monday, February 2, 2015, the courtroom slowly filled as court got underway. The weather was less than cooperative, meaning some supporters were not able to get to court, as a half a foot to over a foot and a half of snow fell over the greater Rochester area the previous evening and would continue throughout the day with gusting winds and white-out conditions.

Sister Grace wasn't even sure if court would be held because of the weather.

However, the wheels of what passes for “justice” didn't stop on account of bad weather.

The case against homeless advocates, Sister Grace Miller of House of Mercy, Tom Malthaner of St. Joseph's House of Hospitality, and Ryan Acuff of House of Mercy, got underway at 9:51AM. The judge wasn't able to send his written decision to the attorneys that morning because he said he was busy “digging out his driveway,” as many of those present were also doing before court.

Sister Grace and Mr. Malthaner approached the judge with their lawyer. The judge asked where Mr. Acuff was.

“My client is in South America, your honor,” said Edward Hourihan, representing the three advocates. "He's on a mission of mercy."

“We're going to adjourn to a later date on this. I've denied the motion to dismiss the charges in the furtherance of justice,” said Judge Morse. “We need to set a date and figure out what's next; I believe the ACD [adjournment in contemplation of dismissal] is still on the table.”

Judge Morse said that he would rather deal with the case, than wait for Mr. Acuff's return as it wasn't fair to Mr. Hourihan's other two clients.

“Mr. Acuff has two weeks to come to court,” said the judge. “I will consider revoking his release and take him into custody if I do not see him in two weeks.”

The judge's voice began to rise as he focused on the fact that Mr. Acuff was not in his court and instead somewhere in South America. “That he would have the chutzpah to leave the country, rather than ask permission—if he's not here in two weeks I will issue a warrant for his arrest!”

“Sooner or later he's got to answer to me!” growled the judge.

Mr. Hourihan and his clients said nothing to agitate the judge further.

“If he does not return in 30 days, he will be charged with bail jumping!” The judge went on, “I am not at all pleased that Mr. Acuff believes himself to be above the law.”

With regard to one being "above the law," Judge Morse's anger at Mr. Acuff and his ideal of the law doesn't seem to mold evenly when it comes to Monroe County and the City of Rochester and their lack of action regarding the homeless. The county has denied its legal responsibility to the poor and homeless, as stated under Article 17 of the New York State Constitution. The City of Rochester completely demolished a homeless encampment—Sanctuary Village—on December 20, 2014 and destroyed individuals' personal belongings. Yet, when homeless advocates demanded that the county abide by the laws governing it and reschedule a meeting they had abruptly canceled without reason and also demanded that the individuals responsible for the destruction of other peoples' shelter and property be held accountable, the so-called law didn't apply. County and city officials were suddenly “above the law.” No one was held responsible. No arrest warrants have been issued. No court dates have been scheduled for their crimes. The double standard is stark.

But I digress.

The judge concluded his admonition with, “We all make our choices and those choices have consequences.”

Judge Morse then noted that the charge of criminal trespass in the third degree “may be insufficient on its face as the building was not fenced off and closed.” He acknowledged another lawyer in his court who had brought the case of People v. Moore to his attention.

The charge was reduced to trespass, a violation, for the three defendants.

The defendants, two of them at least, are due back in Judge Thomas Rainbow Morse's court on Monday, February 9, 2015, at 9:30AM. Mr. Acuff has two weeks to come to court or a warrant for his arrest will be issued. If he does not come back to court in 30 days, the judge is considering adding a bail jumping charge to his case, a misdemeanor.

The case was adjourned until the following Monday.

After court, Mr. Hourihan appraised the situation with 10 or so supporters. “We have some options. We can file new motion papers to have the reduced charges dismissed or we can take the six month ACD. I want to see his decision on the motion before we make any decisions.”

“I feel like we got a lot of milage out of this case. We have a lot of work to do and we don't need to be stuck in court,” said Sister Grace.

Those gathered outside of Judge Morse's court quietly dispersed.

 

See below for a timeline of events, court documents, what you can do, and related stories. When Rochester Indymedia receives the court's decision regarding the judge's denial of the motion to drop the charges in the furtherance of justice, we will share that document here.

Timeline of events:

Date:	Event:
February 9, 2015	The defendants' next scheduled court date before Judge Thomas Rainbow Morse, 9:30AM.
February 2, 2015	The motion to dismiss the charges in the furtherance of justice is denied by Judge Thomas Rainbow Morse. Ryan Acuff is out of the country and has two weeks to get back to court or a warrant for his arrest will be issued; if Mr. Acuff is not back in 30 days, the judge is considering adding the charge of bail jumping to his case. The charge of criminal trespass in the third degree, a misdemeanor, has been reduced to simple trespass, a violation.
January 6, 2014	Sister Grace Miller, Tom Malthaner, and Ryan Acuff attended a motions hearing before Judge Thomas Rainbow Morse regarding their criminal trespassing charges from September 15, 2014.
December/January 2014/2015	The City of Rochester claimed it had to “remove” Sanctuary Village because it was a health and environmental hazard. Commissioner Norman H. Jones called it an “unheated cesspool of filth, hypodermic needles and human waste and urine.” A “testy exchange” between Mayor Warren and a man from Chili was had; the Mayor's office said that her Twitter and Facebook accounts had been hacked and denied that she wrote the texts. Jenny Brongo filled a dump truck with hope (video coming soon!)—full of goods for the homeless—and delivered it to them at Sanctuary Village. The House of Mercy put out a call for funds so that they could buy a building to house the overflow of homeless people. The organization brought in over $80,000 to develop, staff, and fund a new shelter. People dropped off coffee, food, a Christmas tree, clothing, jackets, blankets, sleeping bags, and so much more. There was an astounding response from every day people who reached out to help. Ken Glazer donated a temporary building for shelter on Canal Street. Final renovations are being done on the Glazer building and people hope to move into it by the end of January.
December 20, 2014	Sometime around 10:30AM, a Bobcat front loader, around twenty-five workers from the City of Rochester's Department of Environmental Services, a roll-off dumpster, a rather large, yellow bulldozer, and a bunch of city trucks arrived with orders to destroy Sanctuary Village and clear the land. Commissioner Norman H. Jones of the Department of Environmental Services for the City of Rochester arrived to oversee how things were going. At one point he told a group of stunned people arriving with goods to drop off that the belongings of the homeless were being put into a “roll-off storage container” and preserved. Rochester Indymedia was on the scene during the destruction. Nothing was saved. The director of the Bureau of Operations and Parks, Karen St. Aubin, was also on the scene and refused to talk to the media. City officials and workers left around 4:00PM with most of Sanctuary Village hauled off in a dumpster. The personal belongings and identification cards of the homeless were destroyed. The video of the destruction went viral The City of Rochester received a lot of bad publicity five days before Christmas. That night, Sanctuary Village was re-created in the same spot.
December 19, 2014	Social workers and shelter representatives came to Sanctuary Village in the evening offering people a warm shelter for the cold night ahead. A couple of Rochester Police Department officers mingled with the crowd. Of the 35 or so people there, all but seven went to a warm shelter for the night. People were told that this was temporary and that they were free to come back the next day. There was also, at least, a tacit understanding among some of those gathered that they may have to relocate by December 28, 2014.
November 2014	The Coalition of Concerned Residents of Monroe County continued to meet every Monday to discuss strategy and next steps. Eventually, the City of Rochester asked Sanctuary Village to move to the east side of the Frederick Douglass-Susan B. Anthony Memorial Bridge. The village vacated Washington Square Park and moved under the bridge. Also in November, Sister Grace Miller and Harry Murray participated in a panel discussion titled: Vulnerable Populations/Critical Populations: The criminalization of poverty, homelessness, and dissent; Cheri Honkala, from the Poor People's Economic Human Rights Campaign, spoke in Rochester at a panel discussion titled, Stories of Survival & Resistance.
October 20, 2014	Sanctuary Village (a tent city for people without housing) was created in Washington Square Park in downtown Rochester, NY as a protest against the city's and county's lack of action regarding the homeless emergency.
September 15, 2014	Housing advocates demonstrated at the Monroe County Building. They demanded a meeting with County Executive Maggie Brooks. Sister Grace Miller, Tom Malthaner, and Ryan Acuff eventually moved to the second story of the building to see if they could reschedule their abruptly canceled meeting with Commissioner Kelly Reed from September 9 after being stone-walled by the head of Public Safety for Monroe County David Moore. The three were arrested and charged with criminal trespass in the third degree. They were arraigned the next day. All plead not guilty. Another open letter was published explaining the arrests. One section reads, “You cannot put handcuffs on the spirit of compassion, generosity, and justice.”
September 9, 2014	Another open letter was published by the Coalition of Concerned Residents of Monroe County alerting the community to the fact that Monroe County had abruptly called off a scheduled meeting that was to have happened with homeless advocates and seven county officials. According to the letter, “The County claimed that it was unnecessary to meet and there were no plans to reschedule. Commissioner Reed claimed she would send Sister Grace Miller from the House of Mercy two links to outside funding sources missing the whole point of the meeting (To date, those links were never sent).”
August 26, 2014	The Coalition of Concerned Residents of Monroe County published an open letter to the Monroe County and New York State reminding the county of its obligation to homeless people under Article 17 of the New York State Constitution. Part of the letter read, “We implore you to reverse the lock out of homeless persons from the Civic Center Garage until Monroe County puts into place a permanent plan to house all homeless.” The letter notes that Commissioner Kelly Reed acknowledged that the shelters are “often full.”
August 20, 2014	After 30+ years of the Civic Center Garage being used as a de facto temporary emergency shelter, the LDC decided to enforce measures to keep homeless people out. A group of advocates demonstrated against the closure by conducting a sleep-in for nearly a week.
January 9, 2014	Monroe County attempted to close the Civic Center Garage to homeless people during one of the worst winters in Rochester history; advocates, supporters, and homeless people showed up at the local development corporation (LDC) meeting (the group that runs the garage) demanding that they stop this immoral action.

Court documents: (Read the affidavits from the defendants and check out the memorandum of law submitted to the court motioning for a dismissal of the charges in the furtherance of justice.) court documents re: homeless advocates

TAKE ACTION: Donate to A Home for Sanctuary Village (help purchase a house for the homeless with House of Mercy) | Sign the petition! HALT THE EVICTION AND SUPPORT THE HOMELESS OF SANCTUARY VILLAGE IN ROCHESTER, NY

Related stories: Homeless advocates look to judge to dismiss trespass charges | "Sanctuary" Photojournalist Arleen Hodge shares from Sanctuary Village | City of Rochester Disposes of Citizens ID's and Other Belongings | Homeless displaced again as City destroys tent city | Stories of Survival & Resistance: a night with Cheri Honkala | Vulnerable Populations/Critical Populations: The criminalization of poverty, homelessness, and dissent | Open letter & video statements from arrested homeless advocates protesting county policies | County Suddenly Breaks off Dialogue With Homeless Advocates | Open letter to Brooks regarding homeless crisis | Sit-In Support at the Civic Center Garage against homeless lock-out | Sister Grace and CW of House of Mercy | 13 Rochesterians | Precarious housing for homless continues at county garage... | "The Throwaways": discussion after the screening | The Deplorable, County-made, Reality of Burials Without Dignity

Judge Thomas Rainbow Morse

original article: http://www.rochestersubway.com/topics/2015/01/little-house-in-the-city/

By Mike Governale

Tucked away in a remote corner of downtown, facing the back side of the Geva Theatre and surrounded on all sides by parking lots, stands this unassuming brick house. In downtown Rochester there are several lonely buildings like this one, still hanging on long after its neighbors have all been read their last rites.

I admire old little structures like this. Maybe it doesn’t have a glamourous story to tell. But it’s stuck it out for the last 150+ years – from Rochester’s boom, all the way through the toughest times this rusty city could throw at it. Whenever I’ve visited Geva Theatre I’ve taken notice of this one and wondered if it would find new life…

But in this town it seems there’s no winning. No point at which a place like this is safe from the encroaching asphalt tide. A developer has asked the City to allow him to demolish this one holdout. He wants to clear it to make room for a few more parking spaces for his nearby properties, including these new Geva lofts.

Rochesterians have fought the wrecking ball several times in recent years – mostly in vain. I suspect there’ll be no fight this time though. No petitions, no headlines, no big debates at City Hall.

This building is not protected by any historic registry—and probably not even eligible for listing. It’s had an ugly addition mashed onto the front, and it’s missing much of its interior, its windows, and trim.

What’s more, the developer, Patrick Dutton, has worked to rehabilitate many older buildings in Rochester; including 1 Capron and most recently the former RIT Bevier Building. I was unable to reach Patrick this weekend for comment. But certainly anyone with his track record has earned the benefit of the doubt from the local preservationist community – myself included.

Of course none of these things mean this house couldn’t be spared, cleaned up, and restored to some degree. Being the last remaining house like it in downtown’s Washington Square Park Neighborhood should be worth something, I would think.

I could see the grounds being landscaped and turned into a corner pocket park. The house could even be converted into something like a sandwich & ice cream shop with some outdoor seating for the new loft residents and theater-goers.

Alas, winter’s grip tightens over this place and its days are numbered. But for now it stands here, inviting me to think about what this neighborhood was once like – and what downtown could be again. For that I thank you, little house.

Benny Warr attacked by police
On May 1, 2013, Benny Warr, a disabled, African American man, was waiting for a bus at the intersection of Jefferson Avenue and Bartlett Street in his motorized wheelchair. As he waited, a Rochester Police Department (RPD) cruiser rolled up and officers got out and started telling people to move on.

According to an interview conducted on local radio station 96.5FM WCMF, former Chief of Police James Sheppard said that the officers were tasked with “clearing the block” because the RPD works “very closely with the Jefferson Avenue Business Association.” However, while people were outside enjoying a nice evening and inadvertently exercising their Constitutional rights, the police acted on the alleged agitation of the business association. According to the chief, “what they [the businesses on Jefferson Ave.] don't want is when you have these clusters of people that are hanging out and selling dope—it kills business.” The RPD apparently took orders from the business association that made it criminal to be on the sidewalks congregating—even though, according to James Muhammad of the Jefferson Avenue Business Association at a community rally in support of Mr. Warr on May 18, 2013, “We did not give the police the task to do what they did.”

According to the chief, “what they [the businesses on Jefferson Ave.] don't want is when you have these clusters of people that hanging out and selling dope—it kills business.”

Former Chief of Police James Sheppard on 96.5FM WCMF

The two officers who were telling people to move on, officers Joseph “Joey” M. Ferrigno II and Anthony “Rock” R. Liberatore, approached Mr. Warr and gave him the same order.

According to Mr. Warr, officer Ferrigno told him to “Move.”

“Sir, I'm catching a bus.” said Mr. Warr.

“I said fucking move!” officer Ferrigno responded.

When he tried to explain that he was waiting for the bus, officer Ferrigno sprayed him in the face with OC spray as officer Liberatore violently pushed over and threw Mr. Warr out of his motorized wheelchair onto the ground injuring his left side and stump where his prosthetic leg attaches.

Video courtesy of Tache Young

Shortly after Mr. Warr was thrown to the ground, officer Liberatore “delivered an elbow strike to Mr. Warr's head in the hopes of ending the situation as fast as possible,” according to the investigative summary provided by Professional Standards Section (PSS) (internal investigations) of the RPD.

Video courtesy of Ms. Colbert

This "untrained technique," according to officer Liberatore, was used to secure the officer's and Mr. Warr's safety.

According to independent witness affidavits and video recordings, officers Liberatore and Ferrigno violently kicked, kneed, and punched Mr. Warr all over his body including his head, ribs, stomach, chest, and back.

Again, according to independent witnesses, as Mr. Warr was being violently assaulted by the officers, RPD Sergeant Mitchell “Big Face” R. Stewart II arrived to assist in the arrest of Mr. Warr as he was punched, kicked, and handcuffed by the officers.

According to La'Shanda Flowers, Tache Young, Derrick Latham, Mary Adams, and Ricardo Adams—all independent witnesses—Mr. Warr did nothing to provoke the police violence he endured and he did nothing to resist arrest once the attack began. Mr. Warr was left on the ground waiting for an ambulance, after he was handcuffed, for nearly 25 minutes.

Mr. Warr did nothing to provoke the police violence he endured and he did nothing to resist arrest once the attack began.

Mr. Warr was eventually transported to Strong Memorial Hospital for medical treatment. Mr. Burkwit stated, "Prior to his arrival at Strong, Mr. Warr consistently complained to the officers that his eyes and face were burning due to the mace but the officers never washed or provided Mr. Warr with anything to clean his face. He also told the officers that his handcuffs were too tight but none of the officers loosened or removed the handcuffs until after Mr. Warr arrived," at the hospital for treatment.

While at Strong Memorial Hospital, he was given an appearance ticked and charged with disorderly conduct and resisting arrest. Mr. Warr and his supporters attended Rochester City Court with him as his criminal case was pending before Rochester City Court Judge Stephen T. Miller throughout the summer. On August 9, 2013, the judge granted an adjournment in contemplation of dismissal with respect to the charges.

 

The Rochester Police Department Internal Investigation
The Professional Standards Section of the RPD—internal investigations—opened an investigation on May 13, 2014, by then-chief James Sheppard. The investigation was looking at three separate allegations against the officers involved—one for unlawful arrest, one for excessive use of force, and one for discourtesy.

As to the first allegation regarding unlawful arrest, the PSS investigation found that it was Unprovable. Attorney Charles F. Burkwit, who is representing Mr. Warr, rightfully questioned this ruling. Evidence considered by PSS in its finding were the conflicting testimonies of the officers and Mr. Warr, the New York State Penal Law, the New York State Court of Appeals ruling of People v. Baker, and the lack of independent witnesses. PSS justified it's ruling on the “public harm” element based in People v. Baker, a disorderly conduct charge—primarily based on the police narrative—that Mr. Warr made “unreasonable noise,” he used “abusive or obscene language” in public, that he was “congregat[ing] with other persons in a public place and refuse[d] to comply with a lawful order of the police to disperse,” and finally, because there was a lack of independent witnesses to give a counter-narrative.

Right off the bat, at least one independent witness—Tache Young—could have been contacted by the investigators. PSS knew of Ms. Young because Charles F. Burkwit, had served a Verified Notice of Claim, verified May 17, 2013, on behalf of Mr. Warr upon the City of Rochester where the true identity of the YouTube.com video's videographer—Tache Young—was disclosed—four days after the RPD chief ordered the initiation of an investigation into what happened on May 1, 2013.

Mr. Burkwit questioned, “Would Tache Young and La'Shanda Flowers' testimony have changed the unlawful arrest determination from unprovable to proven? One must question why these known independent key witnesses were never contacted in this case by the Rochester Police Department.”

Again, regarding the first allegation of unlawful arrest, Mr. Burkwit questioned why the “Professional Standards Section did not cite the complete holding in People v. Baker, which held that isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a basis to infer the presence of 'public harm' mens rea necessary to support a disorderly conduct charge.” 

This “public harm” element is further diluted by the fact that there were two officers at the scene because, according to the ruling, others in the vicinity would not risk “join[ing] forces with the defendant to gang up on the arresting officer.”

According to PSS, they have clarified that “the risk of public disorder does not have to be realized but the circumstances must be such that defendant's intent to create such a threat (or reckless disregard thereof) can be readily inferred.”

So, the police argue, regarding People v. Baker, that if there is a contradiction in what actually happened, then they will pass judgement based on a potentially latent, unrealized threat of public disorder. This goes against the case law cited above. And because Mr. Warr is deemed the defendant (and clearly guilty until proven innocent—informally turning the rule of law on its head), PSS will take the word of the officer over the defendant because the officer is a sworn public servant. And because we all know that the word of a white officer is worth more than black life, based on the recent non-indictments of the killer cops who murdered Michael Brown, John Crawford, Eric Garner, and so many others, their narrative—the State's narrative—takes precedence. But wait, what if there was another witness, from above, viewing the whole thing? In Benny Warr's case, there was another such witness.

And because we all know that the word of a white officer is worth more than black life, based on the recent non-indictments of the killer cops who murdered Michael Brown, John Crawford, and Eric Garner, their narrative—the State's narrative—takes precedence.

City of Rochester blue light surveillance camera footage

Turns out, PSS never utilized the City of Rochester's Blue Light Camera surveillance footage for this allegation of unlawful arrest in their investigation. If they had, they might have reconsidered their ruling. According to Mr. Burkwit and his careful analysis of the blue light surveillance camera footage, “[I]f Benny Warr had used profanity towards the officers, which he denies, the Blue Light Camera footage does not show the officers were alarmed in any manner, does not show others were alarmed and began assembling or that the officers were in any type of danger. Rather, the Blue Light camera footage shows Officers Liberatore and Ferrigno arriving and pedestrians, including Benny Warr, promptly leaving the east side of Jefferson Avenue. Within two (2) minutes after the officers' arrival, the group that was in front of 580 Jefferson Avenue is gone as per the Blue Light Camera. Officer Ferrigno's claim that a large group gathered and became very irate and anti-police cannot be supported by the objective blue light camera footage.”

As to the second allegation regarding excessive use of force, PSS recommended the finding of Exonerated for the officers regarding excessive use of force, regardless of the affidavits of independent witnesses who saw the unprovoked police brutality. Ms. Young was mentioned above as the videographer whose video was published on YouTube.com. She recounts, in her affidavit dated May 25, 2013, that “the officers kicked Benny Warr in his head and side and kneed him. At no time did Benny Warr do anything to provoke the attack and he did not try to resist being arrested by the police officers.” While her video was considered in the investigation, her testimony was never sought by the police.

[Tache Young recounts,] “the officers kicked Benny Warr in his head and side and kneed him. At no time did Benny Warr do anything to provoke the attack and he did not try to resist being arrested by the police officers.”

Derrick Latham, another independent witness, stated in his affidavit dated April 15, 2014, “Officer Joey maced Benny. The bald officer pushed Benny's wheelchair over. Benny landed on the sidewalk. One officer put his knee in Benny's back. They were trying to put cuffs on Benny. Benny said he was not resisting. I think the officers kicked Benny when he was on the ground, and they kneed Benny while he was on the ground. I was about five feet from Benny when this happened.”

[Derrick Latham recounts,] "Benny said he was not resisting. I think the officers kicked Benny when he was on the ground, and they kneed Benny while he was on the ground."

Another independent witness, La'Shanda Flowers, wrote in her affidavit dated May 22, 2013, “Benny did not do anything toward the officers. Benny did not swing at the officers. He did not try to hit the officers. The officers grabbed Benny and threw him to the ground. After they threw him to the ground, one of the officers put his knee in Benny's back. I could not understand why the police were doing this to Benny—I told them this—they told me to get away.” She crossed the street as ordered and told other police officers that what they were doing “was wrong.” For this, she was arrested and charged with disorderly conduct.

[La'Shanda Flowers recounts,] "After they threw him to the ground, one of the officers put his knee in Benny's back. I could not understand why the police were doing this to Benny—I told them this—they told me to get away.”

Then there's the testimony provided by Rochester City School District School Board Commissioner Mary Adams to the PSS investigation on June 10, 2013. While her account was recorded and supposedly considered, it looks as if it was summarily discarded. Mrs. Adams testified that she saw both officers “kicking, hitting, pushing, shoving” Mr. Warr and that she saw one of the officers kick Mr. Warr “particularly hard” in his head. She told PSS that the kick “was as if it was just like an emotional hatred, violent kick for no other reason than hatred towards this man.” Mrs. Adams said that she saw the officer take a few steps back to gain momentum for his kick. The PSS investigative summary paraphrased Mrs. Adams as saying that she did “did not observe any kind of resistance on behalf of Mr. Warr.”

[Mrs. Adams] told PSS that the kick “was as if it was just like an emotional hatred, violent kick for no other reason than hatred towards this man.” Mrs. Adams said that she saw the officer take a few steps back to gain momentum for his kick.

Mr. Burkwit also noted inconsistencies in the police reports where the officers clearly contradict each other, the independent witnesses, and the blue light surveillance camera footage: “The [PSS] summary relies solely upon the testimony of the three officers involved in the arrest of Benny Warr. The report recites how Mr. Warr was swinging both arms wildly to avoid Officer Ferrigno's grasp. The report further concludes that Officer Liberatore believes that Mr. Warr hit Officer Ferrigno with his arms. This contradicts Officer Ferrigno's Statement to the Professional Standards Section that he was 'punched' in the genitals by Mr. Warr. There is no proof that Officer Ferrigno was ever punched by Mr. Warr apart from his own self serving statement. The video footage and independent witnesses only support this conclusion.”

Mr. Burkwit also noted inconsistencies in the police reports. He stated "This contradicts Officer Ferrigno's Statement to the Professional Standards Section that he was 'punched' in the genitals by Mr. Warr. There is no proof that Officer Ferrigno was ever punched by Mr. Warr apart from his own self serving statement."

Lastly, regarding this allegation of excessive force, according to an internal correspondence between Lieutenant Jeremy Anzalone, and Lieutenant Michael Callari, officer Liberatore's elbow strike to Mr. Warr's face was an “untrained technique” of the RPD. The use of this “untrained technique” didn't have any bearing on the outcome of the investigation based on the “totality of the circumstances,” which created a “tactical dilemma” for the officers according to Sergeant Andy McPherson.

“These are factors which the officers quickly have to process and make [sic] decision of how to react in order to maintain their safety as well as that of Mr. Warr's,” the PSS investigative summary notes. This assertion, of “safety,” is laughable if it wasn't for the violent actions of the police officers that came down on Mr. Warr, after his Constitutional rights were violated, after chemical weapons were used upon him, and after he was violently assaulted by police after which, he was arrested and charged with crimes. Who are the police protecting? Who are they keeping safe? It appears no one except their own.

This assertion, of “safety,” is laughable if it wasn't for the violent actions of the police officers that came down on Mr. Warr, after his Constitutional rights were violated, after chemical weapons were used upon him, and after he was violently assaulted by police after which, he was arrested and charged with crimes.

Sgt. McPherson, the PSS investigative summary noted, is the RPD's Defensive Tactics Coordinator as well as the head instructor for the Public Safety Training Facility for new recruits. In his determination, after he reviewed both the cell phone video and the blue light surveillance camera footage, and met with officer Liberatore, he found that the use of force was “reasonable and appropriate.” The summary does not indicate that he contacted any independent witnesses for their accounts of what happened.

Finally, as to the last allegation regarding discourtesy, PSS recommended a finding of Unprovable for officer Ferrigno and a finding of Sustained for officer Liberatore--specifically because he admitted during the investigation that he threatened Mr. Warr with the words, “Are you ready to get your ass kicked?” Officer Liberatore, of course, would never say this to be discourteous, but “to use language that is best understood and complied with on the street.” What does this mean? According to PSS, the officers were cleared of wrong-doing by the RPD's internal investigation except for Liberatore's discourtesy. There is no mention in the PSS investigation of any action taken against officer Liberatore. Presumably its findings are passed onto the chief to take (or not) a final, private, disciplinary action against the officer if he deems it necessary.

[Officer Liberatore] admitted during the investigation that he threatened Mr. Warr with the words, “Are you ready to get your ass kicked?” Officer Liberatore, of course, would never say this to be discourteous, but “to use language that is best understood and complied with on the street.”

That was the outcome of the official investigation in all of its incompetent glory. Not unexpectedly, in their internal investigation, the police failed to contact independent witnesses, played hard and fast with the facts in citing the City of Rochester's own video surveillance footage, relied solely on the testimony of the officers to make its decision, and apparently didn't see any problem with using contradictory testimony, statements, and reports from the officers involved. Bluntly, this “investigation” was a farce, and worse, it appears to be legal. This is what happens when police are allowed to police the police. The public gets zero accountability.

 

Legally, the Civilian Review Board should have reviewed the case; it didn't
This needs to be stated very clearly. According to City of Rochester mandatory procedures as well as the Civilian Review Board (CRB) legislation passed in October of 1992, regarding claims against officers where a charge of excessive force is alleged,  Benny Warr's case should have been heard by the CRB. But, it wasn't.

According to an affidavit dated November 7, 2014, Spencer L. Ash, Esq., the attorney representing the City of Rochester in Mr. Warr’s pending civil rights action, had confirmed on the record that “there was no Civilian Review Board review of this matter”.

[The City of Rochester confirmed with Mr. Warr's lawyer that,] “there was no Civilian Review Board review of this matter."

A little over a year ago, it was reported in the Democrat & Chronicle on December 7, 2013 that Mr. Warr's case may not have even been reviewed by the CRB. According to columnist Erica Bryant,  “As it stands, we don't even know if the Civilian Review Board, which is a part of the Center for Dispute Settlement, is reviewing his case. The Civilian Review Board is not allowed to release details about the cases it handles.”

And now, according to the City's affidavit, mandatory procedure and law were disregarded. The "why" has yet to be determined. The disregarded mandatory procedure and law are in complete contradiction with City's stated policy. “If your complaint includes excessive force or charges an officer with a crime, it will also be reviewed by a Civilian Review Board (CRB). The Board includes three citizens who are not members of the Police Department,” according to the City of Rochester's website. In this case, neither the City of Rochester nor the RPD referred the case to the CRB. No independent witnesses were called to speak to what happened because the City, it appears, refused to follow its own procedure.

“If your complaint includes excessive force or charges an officer with a crime, it will also be reviewed by a Civilian Review Board (CRB). The Board includes three citizens who are not members of the Police Department,” according to the City of Rochester's website.

In October of 1992, the City of Rochester approved Resolution 92-40, “which creates a Civilian Review Board for specific complaints of police misconduct and which also recommends a variety of operational refinements to the police recruitment, training, and supervision processes,”  according to the legislation submitted for approval to City Council by then-City Councilmember-at-Large Wade S. Norwood. Mr. Norwood continued in his letter to council that, “The newly created Civilian Review Board (CRB) will review the investigations of the Professional Standards Section (PSS) of the Police Department on cases involving the following:

•     All charges of excessive use of force.
•     Any conduct which, if proven, would constitute a crime.
•     Any other matters referred to the CRB by the Chief of Police.

The Civilian Review Board will then make a finding, as appropriate, with respect to each allegation, and will report such findings to the Chief of Police.”

Incidentally, in May of 2014, I sent a message to Mr. Norwood introducing myself as an Indymedia journalist. I asked him how effective he thought the CRB had been to date and what he thought about the calls for an independent civilian review board. He thanked me for the offer to be interviewed but declined. “As you know, my work as a Regent and as FLHSA Associate Executive Director require that I advocate with regard to community health and education. Given the complexity and breadth of those policy domains, it is important that I not engage in issues that are outside of my mission service,” he wrote.

In a phone conversation I had with Mr. Burkwit on December 12, 2014, he said to me that he had heard that a City attorney told a Democrat & Chronicle reporter that, “Because Benny's case was sued, that's why it never went to the Civilian Review Board.” He continued, “I told [the reporter] essentially that's false because Benny first reported this case to the Professional Standards Section in June [of 2013] and, that is when the Civilian Review Board should have gotten the case. A Civilian Review Board case should have been opened promptly. We didn't even sue the case out until around September 19, 2013—three months later.”

According to Mr. Burkwit, Mr. Warr had the right to complain to the RPD internally and to pursue all other available remedies. “Even though we served a notice of claim [in May], that did not prevent Benny from complaining to the RPD," he said. "RPD opened a file on it, they gave it to the Professional Standards Section, they fully rifled through it—it should have gone to the Civilian Review Board as well. Perhaps there would have been a much different outcome had it gone to the Civilian Review Board.” Mr. Burkwit speculated, “I think they would have found that excessive force was used and I think that's why it never went there (the Civilian Review Board) because the officers could not be exonerated with an adverse finding."

“Even though we served a notice of claim [in May], that did not prevent Benny from complaining to the RPD. RPD opened a file on it, they gave it to the Professional Standards Section, they fully rifled through it—it should have gone to the Civilian Review Board as well."

 

Mr. Warr goes to federal court
On Tuesday, January 13, 2015, 2PM, at the Federal Building on State Street in Rochester, NY, Judge Marian Payson will hear oral arguments from Mr. Burkwit on behalf of Mr. Warr demanding that the City release all the discovery documents requested by Mr. Burkwit. “I'm asking for the personnel files for the officers. I'm also asking the City [of Rochester] to divulge any instances of police misconduct and civil rights actions over the last 10 years—I'm really diving into whatever documentation they have—any documentation they have concerning the officers and their histories and any prior complaints.”

“I'm asking for the personnel files for the officers. I'm also asking the City [of Rochester] to divulge any instances of police misconduct and civil rights actions over the last 10 years—I'm really diving into whatever documentation they have—any documentation they have concerning the officers and their histories and any prior complaints.”

Mr. Burkwit did acknowledge that the City turned over some documentation, but not all. “The City [of Rochester] did give me the concise history report for the officers and Ferrigno and Liberatore both had some prior instances noted. So I am asking for some more specific information on that.”

The public is welcome to attend Judge Payson's court on January 13, 2015 at 2:00pm in order to hear oral arguments. Please bring your I.D. as you cannot enter the Federal Building on State Street without one. Enough Is Enough is planning a press conference with Mr. Warr and his lawyer the next day.

Support Benny Warr in federal court! Tuesday, January 13, 2015, 2PM, at the Federal Building on State Street in Rochester, NY, Judge Marian Payson's court. Don't forget to bring your I.D.!

 

Corruption abounds
It's hard to imagine that the City of Rochester disregarded its own stated policy and legislation in regards to the Civilian Review Board and is now refusing to turn over documentation to Mr. Warr's lawyer. It's even harder to imagine that this case has dragged on for almost two years—and it's not even at the trial phase. However, I am not surprised by, and certainly can imagine, that the so-called investigation was really more of a rubber stamp session giving passes to violent officers who routinely use their police powers to mete out brutality and misconduct in order to get compliance from the people they are sworn to protect. They don't have the nicknames “Joey” “Rock” “Big Face” “Cowboy” “Drake” and others for nothing. The communities in which these officers patrol bestowed these nicknames upon them because of their heinous and barbaric acts. Their nicknames are used in the community as identifiers and warning signs. What it seems to come down to is what people have always known—especially those in Black, Brown, and poor communities—that the police are violent criminals who do not follow their own rules and cannot police themselves.

However, I am not surprised by, and certainly can imagine, that the so-called “investigation” was really more of a rubber stamp session giving passes to violent officers who routinely use brutality and other forms of misconduct to get compliance from the people they are sworn to protect.

Benny Warr, a disabled, Black elder, who was beaten mercilessly by RPD officers and suffers to this day because of it, had his case essentially dismissed by a completely farcical, corrupt, and incompetent, police internal investigation. This is a case that should have found its way to the CRB, but didn't. We have corrupt officials, in charge of corrupt investigations, looking into and finding no issue with corrupt police officers' actions, who regularly conduct police harassment and misconduct.

In Mr. Warr's case, the chief failed to inform the CRB, Mr. Burkwit said in our phone conversation. “The police cannot be trusted to investigate their own. The city has swept the excessive force problems under the rug,” he told me. “The Civilian Review Board never heard Benny's case? The political machine is broken.”

 

Documents directly related to this case: A rebuttal to the PSS investigation of allegations against officers from Benny Warr's lawyer | The full investigative summary from Professional Standards Section re: Benny Warr | Attorney Charles F. Burkwit logs City of Rochester's blue light surveillance camera footage, re: Benny Warr's case | Affidavits from witnesses of the police assault on Benny Warr | A B/W copy of an aerial photo of the Jefferson Ave./Bartlett St. area & a B/W copy which identifies buildings, streets and the bus stop where Benny Warr was assaulted | Part of a PSS transcript with officer Joseph Ferrigno re: Benny Warr case | Officer Ferrigno's RPD Supporting Deposition re: case of Benny Warr | Part of a PSS transcript with officer Anthony Liberatore re: Benny Warr case | Part of a PSS transcript with Sgt. Mitchell Stewart re: Benny Warr case | .PDF of Benny Warr's Federal Civil Rights Law Suit | City Council legislation presented by Wade S. Norwood for the creation of a Civilian Review Board (1992) | Police arrest reports re: Benny Warr | The RPD's policies and procedures for ADA compliance: Are they doing a good job? | What's Missing? | Have you seen these guys? | Have you seen "Big Face"?

Related articles to Benny Warr's case: Benny Warr announces federal civil rights lawsuit against police & city | Judge Miller Passes the Buck on Benny Warr | Press Release for March/Rally on June 28 & Press Packet of Discovery Material | Hurry up and wait: Judge doesn't see motions papers until day of court | Police Brutality and the new Jim Crow | Enough is Enough! No broken necks! We want Respect! court report on Benny Warr | Rochester Indymedia checks in with the Center for Disability Rights on Benny Warr's case | Video Reportback! Enough Is Enough! Community Rally and March! | Breaking: New Video of Benny Warr Being Brutalized by RPD | Breaking! More bullshit from the Mayor's Office! Enough is enough! | "Not Guilty!" Benny Warr Arraigned | Disabled Man Assaulted by RPD While Waiting for Bus | Flyer for Benny Warr Rally | Rochester, NY Police officers Assault Disabled Man in Motorized Wheelchair | Rochester, NY Police officer Cedric Felton Remains Professional, When Asked About Incident With Disabled Man in Wheelchair Being Assaulted by RPD officers, but Female officer Has No Comment | Rochester, NY's So-Called 'Black Leaders' Silent After Disabled African-American Man In Wheelchair Is Beaten By RPD Officers | Dredging Up the Past on Police Union President Mike Mazzeo | SocialistWorker.org: "My god, they're beating him" | Minority Reporter: Support Growing for Wheel-Chair-Bound Man Beaten by Police

Article related to police brutality: What rights? Police brutality in Rochester--a panel | Macnore “Damico” Cameron on the phone about his arrest in Ferguson, MO | Black Rose Anarchist Federation Statement and Video on #BlackLivesMatter Movement | URMC medical students participate in national action: #WhiteCoats4BlackLives | A walkthrough of Vonderrit Myers' killing | "The Whole Damn System is Guilty!" From Rochester to Ferguson -- a community report back | No Justice, No Peace--a response to the non-indictment of Darren Wilson | Black Lives Matter March & Rally @ UR: a response to the Ferguson grand jury decision | Ferguson Response Press Conference hosted by UCLM & CPR | Spontaneous protest in response to Wilson non-indictment | Ferguson Revolutionary Community Organizers Speak! | The Results Are In: An Open Letter from Protestors on the Grand Jury Decision (11.24.14) | Huey Jakhi on the role of women in the movement | Huey Jakhi speaking on "a real dirty devil" in St Louis | Huey Jakhi on life, liberation, and oppressive systems | Reign on white supremacy and police in St. Louis | Revolutionary community organizer Reign speaks! | The Injustice Freak Show | Black Lives Matter: Die-in at Delmar Loop in St. Louis | Ferguson organizers interviewed | "They think it's a game, they think it's a joke!" Ferguson organizers speak! | Blaqsha Shakur Mandela on video of Sgt. Colletti brutalizing Clem Long Jr. | #BlackLivesMatter march & vigil at UR | Black Lives Matter Rally; Sept 27 2014 | Officer Masic to Mr. Keene: "If you don't stop moving, I'm going to shoot you." | Pass OUR community safety act now, before another Ferguson happens | The impact of mass incarceration on families | Ferguson Report Back- Ricardo Adams and Rosemary Rivera | Rosemary Rivera's Messages from Ferguson | NYCLU Annual Meeting: Candis Tollver on NYPD Reform | Ricardo Adams from Ferguson, MO: "Enough is enough!" | National Moment of Silence Against Police Brutality | Reverend Stewart on What's Hot with Howard Eagle | Ban the Box Passes in Rochester! | RPD Civilian Review Board Should Have Investigative Power and Authority | Rev. Stewart gives a teach-in on Independent Civilian Review Boards | Press conference with Dwayne Ivery announcing his civil rights lawsuit against RPD & city | Video from the Forum on Police-Community Relations | Michele Cunningham: another victim of zealous, illegal policing and a broken justice system | discovery documents in Michele Cunningham case | United Christian Leadership Ministry make demands in the Brenda Hardaway case | Affronted by Affronti: Hardaway Bail Increased, Unexpectedly and Without Explanation, to $25K | Dwayne Ivery Severely Beaten by RPD in his Backyard | Rochester Police Officer Mario V. Masic: “I do what I wanna do. My name's Cowboy. This is my block.” | Enough is Enough! Support Sylvester Pritchett in Court! | Indy TV #27: Davy V on Police Brutality and Fighting back with Video Documentary | Six queer-bashed. Police response? Brutality.

 

 

 

DEC. 23, 2014  Rochester, NY - The House of Mercy is thrilled to announce that, thanks to hundreds of caring people through the Rochester region and beyond, our “Home for the Holidays” campaign has successfully reached its goal, and the House of Mercy will move forward immediately to purchase a new house to shelter the homeless.

Sister Grace making the announcement! (Video provided by Jenny Brongo)

On Saturday, December 20, 2014 -- just five days before Christmas -- the City of Rochester, NY used large machinery to destroy Sanctuary Village, a homeless tent camp created within the city’s limits. Lacking support from any city or county resources, the House of Mercy launched an emergency GoFundMe fundraising campaign, “A Home for the Holidays”, with the goal of raising $60K to purchase a shelter house within the Rochester city limits. Two days later, on December 23, 2014, donations from the GoFundMe and from private independent donors reached the goal, allowing the House of Mercy to begin immediate planning for the new shelter space.

The house will be staffed by the House of Mercy and serve, short-term, as a residence for a number of homeless formerly living at Sanctuary Village. Ultimately, the space will serve as long-term transitional housing for homeless Rochesterians in need of safe shelter.

The fundraising campaign will continue as the House of Mercy, an independent not-for-profit organization, now works to  raise the needed operations funds for food, supplies and ongoing maintenance.

“What a way to celebrate the holidays and the Christian spirit of giving,” said Sister Grace Miller, House of Mercy leader and homeless advocate.  “From the bottom of our hearts, thank you to all those caring people who have given support through money, goods, and spreading the word. You embody the true spirit of the seaso and have made this Christmas miracle possible.”

Anyone who wishes to donate to help fund operating costs for the new house can continue to do so via gofundme.com/SanctuaryVillage. Donors can also donate much-needed goods such as socks, gloves, blankets, toys and food via the House of Mercy’s Amazon  wishlist at http://tinyurl.com/HOMwish.  All donations are tax deductible.
 

The House of Mercy, under the leadership of Sister Grace Miller,  has been serving homeless of Rochester for 29 years. Our efforts continue to serve the poorest of the poor.

For more information, contact 

Sister Grace Miller, 585-259-9580 or 585-455-0961

houseofmercyrochesterny@gmail.com

http://www.houseofmercyrochester.org/

www.twitter.com/houseofmercyROC

TAKE ACTION: Donate to A Home for Sanctuary Village (help purchase a house for the homeless with House of Mercy) | Help Fill a Dump truck with Hope! | Sign the petition! HALT THE EVICTION AND SUPPORT THE HOMELESS OF SANCTUARY VILLAGE IN ROCHESTER, NY

Related stories: "Sanctuary" Photojournalist Arleen Hodge shares from Sanctuary Village | City of Rochester Disposes of Citizens ID's and Other Belongings | Homeless displaced again as City destroys tent city | Stories of Survival & Resistance: a night with Cheri Honkala | Vulnerable Populations/Critical Populations: The criminalization of poverty, homelessness, and dissent | Open letter & video statements from arrested homeless advocates protesting county policies | County Suddenly Breaks off Dialogue With Homeless Advocates | Open letter to Brooks regarding homeless crisis | Sit-In Support at the Civic Center Garage against homeless lock-out | Sister Grace and CW of House of Mercy | 13 Rochesterians | Precarious housing for homless continues at county garage... | "The Throwaways": discussion after the screening | The Deplorable, County-made, Reality of Burials Without Dignity

(photo: Shawn Dowd, Democrat & Chronicle)