Benny Warr, awarded $1 in police brutality case, seeks new federal trial

Gary Craig, Rochester Democrat and Chronicle, Published 8:07 a.m. ET March 9, 2019

Benny Warr, who received an award of $1 after a trial in which he claimed he was brutalized and seriously injured by police, is seeking a new trial.

In court papers filed this week, Warr’s attorney, Charles Burkwit, maintains that the jury’s verdict in the civil trial ran counter to the evidence. The jury largely exonerated three officers accused of misconduct and abuse, though did conclude that one of the officers, Anthony Liberatore, used excessive force in a May 2013 arrest of Warr.

The jury then awarded Warr $1.

Also, Burkwit noted in his court papers, the jury decided that Liberatore should be subjected to “punitive damages” — typically an award designed to punish an individual who committed a wrongdoing — but then set the award amount at no dollars.

That “award was inconsistent and against the weight of the evidence,” Burkwit wrote.

City attorney Spencer Ash has responded in court papers that the jury’s verdict aligned with the evidence and that jurors “did not buy (Warr’s) conspicuously false narrative.”

The court salvos largely echo the conflicting testimony from the recent civil trial in federal court, with Warr, who was in a wheelchair which was pushed over when he was arrested, contending that he suffered serious injuries from a beating inflicted upon him by police.

Meanwhile, city officials maintain that Warr initiated the conflict that led to his arrest, tussled with police, and had suffered earlier injuries in life that he now wants to claim happened during the physical confrontation.

Warr, who lost part of his leg when he was a child and has worn a prosthesis since, testified that he was simply waiting for a bus when he was knocked from his wheelchair by police the evening of May 1, 2013. He maintained that he was severely beaten and now suffers from post-traumatic stress.

Evidence showed that he was kneed in the abdomen and hit in the head with an “elbow strike” by police, but police and city officials said the response was proper given Warr’s aggressive response to an attempt to arrest him on a disorderly conduct charge.

Police alleged that Warr was combative and possibly trying to inflame an angry crowd when they arrested him. They said he that he punched them, and continued to fight after he fell to the ground from his wheelchair.

He was arrested on disorderly conduct and resisting arrest charges; a judge later agreed to what is known as an “adjournment in contemplation of dismissal,” leading to the eventual dismissal of the charges after Warr was accused of no more crimes over a six-month period.

In his request for a new trial, Burkwit argues that:

• Medical evidence showed that Warr suffered fractured ribs from his arrest.

• His injuries complicated his ability to now walk with a prosthesis, which he could do beforehand.

• Warr will need years of medical treatment, and a jury decision to award no compensatory damages is not consistent with a determination that Liberatore did use excessive force.

• Attorney Ash committed misconduct during the trial that impacted the jury’s decision, including showing the jury medical records that were not supposed to be admitted at trial; briefly showing a video clip that also had been precluded; and maligning an expert who testified for Warr as being “down the line of doctors.”

In his response, Ash answered that:

• Warr, who previously struggled with drug addiction, had a lifetime of “chronic degenerative medical conditions” and the rib fractures may have been old injuries.

• Warr claimed his head was “punted like a football” in the arrest yet showed no outward signs of head injury afterward and clearly talked lucidly with a witness who was there.

• Warr “tried to instigate” the altercation to have a friend then record it on a cellphone.

• Any errors made by Ash during the trial were resolved quickly by instructions to the jury from the judge and were irrelevant when weighed against the bounty of other evidence.

 

Gary Craig, Rochester Democrat and Chronicle, March 9, 2019, “Benny Warr, awarded $1 in police brutality case, seeks new federal trial”, https://www.democratandchronicle.com/story/news/2019/03/09/benny-warr-police-brutality-case-seeks-new-trial/3103338002/

Advertisements

Jury awards $1 to man in wheelchair who sued Rochester police for excessive force

Gary Craig and David Andreatta, Rochester Democrat and Chronicle Published 10:11 p.m. ET Feb. 4, 2019 | Updated 7:30 p.m. ET Feb. 5, 2019

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.

More:Jury to decide police brutality, wrongful arrest allegations from Benny Warr

2017:Lawsuit by wheelchair-bound man who alleged police abuse can go to trial

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.”

Gary Craig and David Andreatta, Rochester Democrat and Chronicle, Feb. 4, 2019, “Jury awards $1 to man in wheelchair who sued Rochester police for excessive force”, https://www.democratandchronicle.com/story/news/2019/02/04/benny-warr-rochester-police-brutality-verdict-federal-jury-wheelchair-dollar-james-sheppard/2769182002/