Exonerating police misconduct: no accountability in Benny Warr case
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.!
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
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