Ivery & Warr in court: Demand city hand over excessive force documentation

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Submitted by T. Forsyth on Tue, 2015-04-28 13:31

On April 27, 2015, federal court Judge Jonathan Feldman reserved his ruling on the discovery of personnel files of officers named in Dwayne Ivery's case of police brutality going back 10 years because, according to Charles F. Burkwit, representing Mr. Ivery, the judge “...wants to look at the case law concerning disclosure of complaints against other officers.” Corporation Counsel Spencer Ash represented the City of Rochester.

“I told [Judge Feldman] that we have a Monell claim where we have the right to explore whether the city has tolerated a custom or pattern of excessive force on the part of its officers,” said Mr. Burkwit. “Judge Feldman said he wanted to take a look at that issue and then he will issue a decision at a later time.”

The judge also intimated that he would grant the plaintiff's discovery request—giving them the personnel files of officers outside of those named in Mr. Ivery's suit where evidence of excessive force exists as well as those named in his suit going back 10 years—as long as both sides agreed to a confidentiality order and signed off on it seven days from April 27.

If Mr. Burkwit can prove his Monell claim at the trial, then the City of Rochester and its officers can be held directly liable, which would raise the amount of damages Mr. Ivery could receive for the police brutality exercised against him as well as the subsequent injuries—both psychological and physical—he has suffered since August 2013.

“I think what he's saying is that documents that the city may have may be discoverable. There's a difference between whether they are discoverable or admissible at trial. He said as far as discoverability goes, he wants the city to search the personnel files of the named officers to see if there is any excessive force complaints against them or if there is any documents in there which would go to their truth or veracity. If there are such documents, those should be disclosed to the plaintiff. But it sounds like he wants everything subject to a confidentiality order.”

Assuming the confidentiality order is signed in a week, the city has two weeks to gather all documentation asked for by Mr. Ivery's attorney, and then 30 days for it to be turned over.

“He gave the city 14 days in which to get us the other discovery responses we're entitled to,” said Mr. Burkwit. “The judge wants a confidentiality order signed in the next 7 days. Hopefully we'll have all the documentation in the next few weeks.”

If the documents are handed over to Mr. Ivery and his attorney, then they could potentially be admitted in court making them public documents. This would showcase officers' use of excessive force going back 10 years and any action taken by the department and city against those officers.

“Really, the main issue now is the excessive force complaints against the named defendants and against RPD officers. That has been the sticking point that they have not answered any of our discovery,” said Mr. Burkwit. “Instead of answering it, they move for a protective order.”

A handful of Mr. Ivery's supporters sat in the pews observing the hearing.

Dwayne Ivery was severely beat by officer Alexander Baldauf on August 17, 2013. Police were called for a domestic dispute that was quickly de-escalated. Surveillance video from Mr. Ivery's home shows police facilitating the removal of license plates from a truck that was registered to his then-girlfriend. On the video, Mr. Ivery, after conferring with officer Rickey Harris, proceeded to walk calmly toward his girlfriend and officer Baldauf in front of the truck.

Watch the surveillance video of the attack from Mr. Ivery's home:

Dwayne Ivery Attacked by RPD in his Backyard

“I thought I told you not to saying anything!” shouted officer Baldauf, without warning, according to Mr. Ivery.

Officer Baldauf then grabbed Mr. Ivery's hand and punched him in the head. Mr. Ivery stumbled around the front of the vehicle trying to move away from the officer who continued punching him numerous times in the head and face before throwing and pinning him on the ground near his garage. While pinned, officer Baldauf continued punching Mr. Ivery in the face, head, and areas all over his body. At one point, the officer stomped on Mr. Ivery's head with his boot. Officer Harris stood idly by and did nothing while Mr. Ivery lapsed in and out of consciousness with the punches. Officer Harris eventually jumped on Mr. Ivery, pinning him, while officer Baldauf continued hitting him until officer Harris finally handcuffed him.

Watch video of Charles F. Burkwit, representing Dwayne Ivery, respond after court:

After-court response: Motion to compel the city to release documents in Ivery case

Update on Benny Warr
Mr. Burkwit is also representing Benny Warr, a disabled, African American man who was brutalized by three RPD officers: Joseph M. Ferrigno II, Anthony R. Liberatore, and Sgt. Mitchell R. Stewart II. On January 13, 2015, Mr. Burkwit filed a motion to compel against the city demanding that they release discovery documentation for Mr. Warr's case. He gave an update after Mr. Ivery's hearing before Judge Feldman. Mr. Warr's discovery case will once again be heard before federal court Judge Marian Payson this Thursday, April 30, 2:00PM at the Federal Building (100 State Street). Supporters are welcome to attend; please bring your photo ID to get into the building.

Watch video of Benny Warr being assaulted at the corner of Jefferson Ave. and Bartlett St.:

Corrected Higher Resolution Video of Benny Warr Being Attacked

Video of Corrected Higher Resolution Video of Benny Warr Being Attacked

“Basically, the city filed a motion for reconsideration [in the case of Benny Warr]. They are challenging Judge Payson's ruling made at the January 13, 2015 motion hearing,” said Mr. Burkwit. “They want to judge to reconsider her decision on the issue of disclosing excessive force complaints against other officers for that four-year window.”

The same foot-dragging by the city in Mr. Ivery's case has been going on for approximately 11 months in Mr. Warr's case.

“We argued that the time to move for reconsideration has long expired—that their motion is untimely. In any event, even if they do want the judge to reconsider, that basically the court is not bound by state privilege law. They are alleging the civil rights law and the public officers' law apply in shielding these documents in protecting them,” said Mr. Burkwit after court. “We argued that the state law does not apply and that the court needs to perform a balancing test to see whether or not those documents should be disclosed. We'll see what Judge Payson rules on Thursday.”

At the January 13 hearing, Judge Payson reviewed the motions, heard arguments, and ruled on five points of dispute with Mr. Warr's discovery motion. The discovery motion asked for:

all complaints made against any officer over the last 10 years involving the use of excessive force or allegations of misconduct related to “operation cool down,” “clear the block,” or “clear the streets”
all received records concerning citizen injuries or complaints relating to injuries sustained by arrestees from officers over the last 10 years
provide all federal and state lawsuits brought against the city and the RPD over the last 10 years relating to “operation cool down,” “clear the block,” or “clear the streets”
the names and badge numbers of officers found to have used excessive force as well as any names that were forwarded onto the Monroe County District Attorney's Office for prosecution in relation to “operation cool down,” “clear the block,” or “clear the streets” over the last 10 years
and specific information for the officers named in Mr. Warr's suit

Regarding the upcoming hearng on April 30, Mr. Burkwit said, “We moved to compel discovery again because we have not gotten the discovery that we were supposed to get within 30 days after January 13. And we so moved for sanctions asking the court to impose financial sanctions against the city for deliberate failure to disclose the documentation as ordered by the court.”

Judge Payson's rulings regarding the five points of contention between Mr. Warr and the city, sequentially, were:

She ordered that the city had to search for the requested data. However, if the search was too onerous, the city had two weeks to submit an affidavit from the person(s) doing the actual work who could testify as to why the search was too onerous a task to complete [from January 13, 2015]. She ruled that 10 years is too broad a scope and ordered that Mr. Warr be given the requested data for three years prior to his arrest and one year after. She also said that the city had four weeks to do their search and produce records from January 13.
On this point, Judge Payson ordered that records concerning citizen injuries or complaints relating to injuries sustained by arrestees be released. However, these records were limited to arrests made by Ferrigno, Liberatore, and Stewart. She ordered the city to figure out how such complaints might be logged and hand them over to the plaintiff four weeks from the date of the hearing. Mr. Warr was to be given the requested data for three years prior to his arrest and one year after. The 10 year scope was too broad.
Point three was simply too broad. She noted that Mr. Burkwit was aware of searchable databases for legal claims. She said he had to search for other cases against the city and police that are related to “operation cool down,” “clear the block,” or “clear the streets,” using those known databases. She did rule, however, that the city would have to search and hand over any lawsuits specifically regarding the named defendants. Mr. Warr was to be given the requested data for three years prior to his arrest and one year after. The 10 year scope was too broad.
Exactly like Mr. Ivery's case, Mr. Burkwit filed a Monell claim in which he is attempting to prove that there is a pattern and practice within the city and the police department to not only condone the use of excessive force but also to reward and/or promote officers who have used it. In a kind of compromise, Judge Payson ruled that the city must provide the number of officers whose names were sent to the DA's office for prosecution relating to excessive force or any of the programs: “operation cool down,” “clear the block,” or “clear the streets.” She said that if no officers had been referred for prosecution, then no further action is required. However, if the city had sent the names of officers to the DA's office for prosecution, then another hearing would be held to figure out what information would be disclosed in court. Mr. Warr was to be given the requested data for three years prior to his arrest and one year after. The 10 year scope was too broad.
Finally, with reference to specific information about the named police defendants, Mr. Warr was to be given their full names, badge numbers, heights, weights, and work addresses. The judge limited this to officers Liberatore and Ferrigno.

To date, the city has refused to hand over any of the discovery granted by Judge Payson.

On May 1, 2013, Benny Warr was waiting for the bus in his wheelchair at the intersection of Bartlett St. and Jefferson Ave., near his home. As he was waiting for the bus, a Rochester police cruiser rolled up to the intersection and told people to move on. When they approached Mr. Warr, he responded by saying he was only waiting for the bus. According to Mr. Warr, the officers then maced him in the face and proceeded to throw him out of his chair where he was kicked, punched, and kneed by police while on the ground. He was put in handcuffs for nearly two hours until he received care at Strong Memorial Hospital for his injuries. He sustained broken and fractured ribs, numbness in his hands, neck injuries, internal injuries, and cuts on his wrists.

“Any documents that we can obtain from the city is a victory in itself. It's been a very long process,” said Mr. Burkwit. “On Benny Warr's case we've been fighting for about 11 months now to get documentation and we're not even done battling it out in court to get the documents. I think this is a good start.”

On January 13, Mr. Warr was asked what he thought about the outcome of the hearing: “I think that everything went well. God is with me. I don't know too much about the law but I think that it's working. I thank everybody who came for support and I just love each and everyone of them.”

Mr. Burkwit, after court on April 27, was hopeful: “It's been a long battle and we'll just continue plugging along and hopefully get the documentation we're entitled to.”

Watch video of Charles F. Burkwit, representing Benny Warr, and Benny Warr himself, respond after court on January 13, 2015:

After-court response: Warr motions to compel city to release documents

Video of After-court response: Warr motions to compel city to release documents