Benny Warr, charged with resisting arrest, said he was attacked by police. Staff file video, Rochester Democrat and Chronicle
A federal jury on Monday mostly exonerated three Rochester police officers involved in a highly publicized arrest six years ago of a man in a wheelchair.
Jurors found that the man, Benny Warr, was not wrongfully arrested and that two of the officers — Joseph Ferrigno and Mitchell Stewart — did not use excessive force.
The jury did conclude that the third officer, Anthony Liberatore, used excessive force in arresting Warr, but awarded Warr just $1 in what are known as nominal damages.
The phrase means jurors felt a legal wrong occurred but found no harm was done.
At the same time, the jury declined to award compensatory damages but voted to award punitive damages in the amount of $0.
Liberatore was accused of shoving Warr from his wheelchair and also used an “elbow strike” — properly used, police said — to Warr’s head when Warr was on the ground.
Warr’s attorney, Charles Burkwit, called the outcome “an inconsistent verdict.”
“Obviously we were all in shock,” Burkwit said. “What’s the point of a making a punitive damages finding if you’re not going to award any money?”
Warr brought his lawsuit against the officers, the city of Rochester and former Police Chief James Sheppard in 2013, about four months after his arrest. The allegations that Sheppard improperly supervised officers were dismissed at trial.
Police officers contended that Warr punched and fought them as they tried to arrest him for allegedly causing a scene by shouting profanities. Warr maintained that he did not resist, that he was quietly waiting for a bus when arrested, and that he was in a fetal position when allegedly beaten.
“While, the city agrees with this decision, I cannot comment further on this matter in the interest of protecting our taxpayers in the event of potential appeals,” Corporation Counsel Tim Curtin said in a statement in which he also thanked the jury and city’s legal team.
Burkwit said Tuesday that the jury seemed to ignore evidence that Warr suffered from post-traumatic stress after the incident. He also contended that “inflammatory” statements from the city’s legal team, including mentioning that Warr had once been jailed despite a judge’s ruling that the information not be mentioned at trial, may have influenced the jury.
“There was a lot of prejudicial and inflammatory information, which I think as a whole prejudiced Mr. Warr,” Burkwit said.
Testimony at trial showed that Warr had previously suffered from chronic pain, and had also battled drug addiction, though, records indicated, he has been clean for years. He has worn a prosthesis on one leg since childhood.
Warr’s arrest and the events that preceded it were caught on cellphone cameras and widely shared on social media, but there were strikingly different interpretations of what the video showed. A city Blue Light camera also captured some of the confrontation.
In his closing arguments last week, Burkwit said the video supported Warr’s story and proved that the police had lied in their claims about the incident.
Meanwhile, city attorney Spencer Ash told jurors, “This video footage is an ally of ours,” in his summation.
Warr resolved the criminal charges against him by agreeing to what is known as an “adjournment in contemplation of dismissal,” which allows for charges to be dismissed after six months if there are no other charges during that stretch.
A police review board exonerated the officers of misconduct, a decision upheld at the time by Sheppard.
However, Burkwit said, the jury’s finding that Liberatore used excessive force showed the lapses in the city review, which determined just the opposite.
“There’s something to be said that the jury agreed … that the city brushed this under the rug,” he said.
The trial coincidentally came at the same time as the city is considering an overhaul of its police disciplinary process.
“The Mayor remains committed to a transparent police accountability process, which is why she introduced legislation for the creation of a Police Accountability Board with unprecedented investigative authority,” Curtin said in his statement, mentioning a recent proposal from Mayor Lovely Warren.
City Council, meanwhile, has proposed legislation that would allow the Police Accountability Board to decide discipline for police. Warren’s proposal would allow the board to recommend discipline, but the police chief would still have the final say.
Burkwit said he planned to ask the court to set aside the verdict.
“An appeal is always an option as well,” he said. “Due to the shocking nature of the award, at this point we need to let a little time go by and let the court address the verdict.”