It’s not over for Benny Warr
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A decision was rendered regarding motions filed at the conclusion of the Benny Warr civil trial against Rochester Police Department officers who assaulted Mr. Warr. United States Magistrate Judge Marian W. Payson issued her decision on July 22 regarding the plaintiff’s motions to set aside the verdict, grant a new trial, and impose sanctions against the defense counsel, City of Rochester attorney Spencer Ash, for misconduct. The judge has not dismissed the motions meaning that they are still on the table. This is the first public communication from the judge since the end of Mr. Warr's civil trial.
Read the Decision and Order here:
In her decision and order, Judge Payson specifies that the “application is premised on two grounds: first, that defendants’ counsel [Spencer Ash, the City of Rochester attorney representing the Rochester Police Department (RPD) and its officers] engaged in deliberate misconduct prejudicial to plaintiffs’ right to a fair trial; and, second that the jury’s verdict awarding no compensatory or punitive damages was inconsistent and against the weight of the evidence.” The seven-page document elucidates the issues raised in court papers pertaining to both points. The judge does acknowledge in her order and decision that such issues did arise during the trial, but without supporting documentation examining the entirety of the trial, she could not properly rule on the motions.
Therefore, she ordered the plaintiff’s attorney, Charles Burkwit, to “supplement their post-trial motion with an amended affidavit and memorandum of law supported by specific citations to the trial record and accompanied by the trial transcript.” Mr. Burkwit has until September 20 to file the appropriate supporting documentation.
The backstory…
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, an RPD cruiser rolled up and officers got out and started telling people to move on. 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.
After again trying to explain his constitutional right to wait 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. Officer Liberatore then “delivered an elbow strike to Mr. Warr's head in the hopes of ending the situation as fast as possible.” Officers Liberatore and Ferrigno violently kicked, kneed, and punched Mr. Warr all over his body including his head, ribs, stomach, chest, and back. Then RPD Sergeant Mitchell “Big Face” R. Stewart II arrived to assist in the arrest of Mr. Warr by, according to one witness, kicking him in the head.
According to 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. At Strong Memorial Hospital, he was given an appearance ticket and charged with disorderly conduct and resisting arrest. On August 9, 2013, Rochester City Court Judge Stephen T. Miller granted an adjournment in contemplation of dismissal with respect to the criminal charges against him.
Ferrigno, Liberatore, and Stewart inflicted severe injuries on Mr. Warr. He had broken ribs, numbness in his hands, neck injuries, internal injuries, and cuts on his wrists. The attack left him with nightmares, PTSD, flash-backs, short-term memory loss, a change in personality, constant and increasing pain, and physical mobility issues namely being unable to use his prosthesis.
The trial…
On January 22, 2019, five and half years later, Mr. Warr’s civil trial began. The jury, seven white women and one white man, was seated in the morning. None of the jurors lived in the City of Rochester; several came from around the western part of New York State (this is where the western district draws its jurors from). Several had indirect connections to law enforcement. There were no people of color. There were no apparently disabled people on the jury. This was not a jury of Mr. Warr’s peers.
Several witnesses from Jefferson Avenue wore dreads, had street tattoos, used unfamiliar slang, and had simmering experiences with police and prison before a jury who would never have had a conversation or a meal or attended a service or gone to school with anyone remotely like them.
Spenser Ash, the city attorney who represented the police, the former chief, and the city, played upon those differences, appealing to the jury’s racist fears, referring to Tashe Young with a role of the eyes, calling her ‘another upstanding citizen’ in a voice dripping with inappropriate sarcasm. He used vulgar street phrase, ‘you’d ride and dive wich yer man’ and winked at Pastor Nina Warr to degrade her explanation of her loyalty to her husband through tribulation. He pretended (he is Black, after all, and is often seen in the neighborhood he derided) not to understand when Ms. Young referred to Uncle Hoppy, knowing that Benny had an affectionate nickname that everyone recognized. Ash knew his audience. Throughout the long days there were so many of these racial and cultural diminishments.
When the defendant officers testified, they used the language of war: “working in the trenches,” looking out for an “ambush,” “watching our six,” “no cover,” and “Jefferson Avenue is a dangerous place.” Ash called Mr. Warr in both his opening statement and his closing statement “blight” and “a nuisance.” How are we, the public, supposed to feel when police administrators and elected officials call for trust with the police and tell us that the police are guardians of the people when the reality is, at least among some elements in the department, that a warrior mentality against communities of color dominates?
On February 4, 2019, the jury indicated that they had reached a verdict. Liberatore was found to have used excessive force. The jury voted no on all other claims including false arrest, battery, and assault. Ferrigno and Stewart were found not to have used excessive force on Benny. For compensatory damages, zero dollars. For nominal damages, $1. For punitive damages, yes on Liberatore, but the jury awarded zero dollars. Those in the gallery were stunned at the miscarriage of justice.
The demands…
The anti-police brutality organization, Enough Is Enough [that the author of this article helped found], formed shortly after Mr. Warr was assaulted by officers employed with the RPD. The demands made by the organization since the attack on Mr. Warr have not changed in over five and a half years:
1. Rochester Police Department, fire the officers involved in the attack; bring them up on criminal charges including assault!
2. Rochester Police Department, publicly apologize to Benny Warr and his family!
3. Rochester Police Department, clarify policies and procedures and retrain officers when interacting with people with disabilities!
4. Rochester Police Department, end racial profiling and the criminalization of neighborhoods of color!
Enough Is Enough has been a pivotal member of the Police Accountability Board Alliance that has been pushing for an accountability board with teeth to do meaningful oversight of the RPD. One of those pillars is the ability for civilians–residents of Rochester–to discipline officers for misconduct. Rochester City Council passed the Rochester Police Accountability Board legislation on May 21, 2019. In order for it to become established law, city voters must affirm the legislation by voting for it on the ballot on Nov. 5. Find out more at PABNOW.com.
It’s not over for Mr. Warr. Not by a long shot.
Enough is enough!
Donate here: https://www.gofundme.com/justice-for-benny-warr
Related: A Jury of One's Fears | Joey Lipari on Syracuse's Citizen Review Board | Civilian Review Board built to fail Benny Warr and other complainants | David Vannv. the system
