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”,


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”,

Trial for Rochester police officer charged in brutality case to be held in March

Howard Thompson, Posted: Jan 15, 2019 01:42 PM ES

ROCHESTER, NY (WROC) – The case against a Rochester police officer facing an assault charge in a reported case of police brutality will head to trial, a judge ruled on Tuesday.

A judge denied a motion Tuesday to dismiss charges against Officer Michael Sippel, who is accused of assault in the third degree in the attack of Christopher Pate.

The trial for Sippel is now set to start on March 25.

Pate says he was beat up by Officer Sippel and another Rochester officer after being mistaken for a wanted man during a traffic stop on Fulton Avenue last May. The police department said last year that, even after Pate provided documents to prove his identity, Sippel and the other officer persisted with the arrest, during which Pate was beaten and tased.

As a result of the incident, Pate suffered fractures to his jaw and skull.

Pate was initially charged with resisting arrest and disorderly conduct. However, charges were later dropped by the district attorney’s office.

After the body camera footage of the incident was reviewed, the police department suspended both officers without pay. However, a grand jury only brought charges against Officer Sippel.

The brutality case became an impetus behind the push for a new police accountability board, which is now being considered by city leaders.

Howard Thompson, Jan 15, 2019,, “Trial for Rochester police officer charged in brutality case to be held in March”,

Lawsuit: Rochester police officer attacked teen who called him a name

Posted: Dec 28, 2018 03:29 PM EST

ROCHESTER, NY (WROC) – The Rochester Police Department is facing another lawsuit alleging police brutality after a 16-year-old claims he was attacked by an officer after he called the officer a name.

The lawsuit is being brought by the family of 16-year-old Yahmiek Maddox, who is being represented legally by Rochester school board president Van White, against the city, the Rochester Police Department and Officer Phillip Perelli.

According to the lawsuit, on May 25, Maddox was approached by officers who believed he was drinking alcohol. But, the lawsuit states, Maddox was only drinking a bottle of juice he bought from a store on his way home from school.

During the incident, Maddox says he was handcuffed, but later released. As he walked away, the lawsuit says he called on of the officers, Perelli, a name. The lawsuit doesn’t specify what exactly was said.

But, according to Maddox, the utterance led to Perelli slapping then grabbing Maddox around the neck.

At that point, the lawsuit alleges:

After violently attacking Mr. Maddox, several officers wrestled Mr. Maddox down to the ground. After these officers wrestled Mr. Maddox to the ground, Defendant Perelli began to punch Mr. Maddox repeatedly – who at that point was completely defenseless.

After putting handcuffs on Mr. Maddox for a second time, officers placed Mr. Maddox in the back of a police vehicle.  Once Mr. Maddox was secure in the vehicle, Defendant Perelli sprayed mace on Mr. Maddox as he sat a defenseless and handcuffed in the back of the police vehicle. With the vehicle windows and doors closed, Mr. Maddox could barely breath.

Maddox was charged with resisting arrest, harassment and a violation of the alcohol beverage and container law. The lawsuit says after the arrest, Maddox was taken to Monroe County Jail, but the charges against him were ultimately dropped by the district attorney’s office.

The lawsuit is now seeking damages for the attack and arrest.

During a news conference on Friday, White played a clip showing surveillance video of the altercation.

In a statement, the City of Rochester said, “Because this is now pending litigation and, in such matters, we are obligated to protect the interest of city taxpayers, we cannot offer additional details or comment at this time.”

Christopher Pate’s ‘crime’ was jaywalking

David Andreatta, Rochester Democrat and Chronicle Published 8:58 p.m. ET Aug. 28, 2018 | Updated 9:48 p.m. ET Aug. 28, 2018

Two Rochester Police Department officers have been suspended without pay over allegations of excessive force in a May incident. Sean Lahman


If every Rochester police officer were as merciless as the two cops who allegedly beat Christopher Pate, nearly every pedestrian in the city would be in line for a broken face.

That’s because Pate’s alleged crime was jaywalking. The cops called it disorderly conduct. But it was jaywalking.

The episode was detailed in an incident report filed by one of the officers after Pate was arrested, and in the criminal complaint against Pate that a Rochester City Court judge dismissed after recognizing it for the trumped-up nonsense it was.

It all went down around 4:45 p.m. May 5, when officers Spenser McAvoy and Michael Sippel were driving eastbound on Bloss Street and spotted Pate walking on the sidewalk near the corner of Fulton Avenue.

McAvoy wrote in his report that Pate fit the description of a wanted man who was black, had a thin build and a large forehead, and wore dreadlocks or braids. McAvoy reported that he got out of the cruiser and approached Pate, who was on the south side of the street.

“(Pate) changed his direction of travel, wouldn’t look at me, and began to walk northbound across Bloss Street and in doing so impeded the vehicular traffic of a gray Honda sedan that was traveling eastbound on Bloss,” McAvoy wrote.

More: City man alleges police tased him, punched him while he was handcuffed

More: RPD officers suspended, may face charges for excessive force

McAvoy wrote that he asked Pate whether he had identification, to which Pate reportedly replied, “Have a good day, officer.”

“This exchange happened several times and then I grabbed (Pate) by the hand, at which point he told me that I had no reason to stop him,” McAvoy wrote.

His report went on to read that Pate showed a public assistance card that revealed Pate was not the wanted man.

Right then, McAvoy wrote, he noticed his body camera had somehow turned off. He reported that he “disengaged momentarily” to turn his camera back on.

In the meantime, Pate went on his way, only to be confronted from behind by Sippel, who asked Pate to stop and show his identification.

Hadn’t Pate just been through this? That might have crossed Pate’s mind because, according to the report, he refused to stop and kept walking eastbound, this time on the north side of Bloss, before turning north onto Fulton.

“In front of 75 Fulton Ave. we caught up to (Pate),” McAvoy wrote. “After a use of force (Pate) was taken into custody.”

The report didn’t chronicle the use of force but noted that Pate was transported to Rochester General Hospital for “facial injuries and a tasing.” Pate claims after he was tased and handcuffed, he was punched repeatedly in the head and that the blows broke bones.

Because Pate was too beaten up to go to be processed at the police station, he was issued a ticket to appear in City Court three days later to answer the charges against him.

Pate was arrested on two charges — disorderly conduct and resisting arrest.

What was disorderly about his conduct?

“The defendant did cross Bloss St. northbound and stepped into the street in front of a gray Honda sedan which impeded the vehicles (sic) travel,” read the criminal complaint against Pate. “The defendant was not in a crosswalk.”

Not in a crosswalk?! Impeded a vehicle?! Have these officers ever observed the walking patterns of pedestrians downtown, or anywhere in the city? Traffic slowing for a person crossing the street outside the crosswalk is an everyday, every minute occurrence.

Jaywalking violates state law, which requires pedestrians crossing a roadway outside  a crosswalk or intersection to yield to vehicular traffic. It also violates a city ordinance if it’s done inside the Inner Loop or on a main traffic artery or on a through street.

Bloss Street is none of those. And even if it were, jaywalking is an infraction punishable by a fine of between $25 and $500 or 15 days in jail.

But jaywalking is so commonplace that police don’t bother enforcing it. A Rochester Police Department spokeswoman told me last year, in response to a request for statistics on jaywalking, that the department hadn’t issued a ticket downtown in recent memory.

No wonder Pate refused to put his hands behind his back after being told several times, as police alleged in the criminal complaint charging him with resisting arrest.

No wonder Chief Michael Ciminelli said at a news conference Tuesday announcing McAvoy’s and Sippel’s unpaid suspension that Pate should’ve never been arrested.

“It wasn’t even that officers went too far in making an arrest,” Ciminelli said. “This arrest should not have been made in the first place, and it triggered a series of events that was frankly outrageous.”

Pate, it seems, was only guilty of being black. At last check, that wasn’t a crime, either.

McAvoy and Sippel face departmental charges and their case has been turned over to the Monroe County District Attorney’s Office for consideration of criminal charges — real ones that stick.

David Andreatta, Rochester Democrat and Chronicle, Aug. 28, 2018, “Andreatta: Christopher Pate’s ‘crime’ was jaywalking”,

2 Rochester police officers suspended over incident on video

Tracy Schuhmacher and Will Cleveland , Democrat and Chronicle Published 2:27 p.m. ET April 20, 2017 | Updated 6:43 p.m. ET April 20, 2017


Two Rochester police officers have been suspended over an incident caught on video, Rochester Police Chief Michael Ciminelli said Thursday.

The officers, who were not identified by the department, were responding to complaints about noise involving a dirt bike on Sunday night on Northampton Street, Ciminelli said at a news conference. They have been suspended with pay.

Michael Mazzeo, the president of the Rochester Police Locust Club, the police union, said the suspensions weren’t justified. The video, Mazzeo said, shows officers in a police car approaching a man on a dirt bike from behind, getting out of their car, and then pulling the man off the bike. The man is thrown to the ground after being pulled off the bike.

“The video does raise some concerns, and based on the available documentation we have, we couldn’t answer those concerns,” Ciminelli said. He said the case was referred to the department’s Professional Standards Section for a full investigation.

Four officers were at the scene. The two suspended officers were field training officers who were training two new recruits, whose job was only to observe. The role and participation of the new officers will be part of the investigation, Ciminelli said.

“We need to understand the justification for the use of force,” he said. He stressed that the suspensions should not be interpreted as a finding of guilt or misconduct. Northampton Street runs between Emerson and Bergen streets in the Lyell-Otis neighborhood in northwest Rochester.

Read more:Critics seek overhaul of police conduct review

A body camera worn by an officer did not capture the incident, Ciminelli said. A draft police report was completed; it had not been reviewed and approved.

The person who was apprehended in the video was given a traffic ticket for unlicensed operation, Ciminelli said.

“Whenever an officer uses force, that officer has an obligation to articulate the justification for the force,” Ciminelli said. “That’s what we have to get into — why it was done, how it was done, did it follow our training, our policies, and that’s what we’re going to be looking at.”

Mazzeo reiterated that the union thinks the suspensions are unwarranted. He said the officers were “acting on information they had.” Mazzeo neglected to reveal the nature of the information.

“The takedown was appropriate in order to secure this individual who wasn’t complying,” Mazzeo said. “The information that they had gave them the need to even use extra caution. There is intelligence and information relevant to this individual. I’m sure the department doesn’t want to put that out there, but they certainly have access to it.”

Mazzeo said department administration isn’t sending the right message to officers with these suspensions. He said suspensions are rare. “This is a knee-jerk reaction to a video,” Mazzeo said. Officers don’t feel supported, he said.

“It’s time the chief starts running the department,” Mazzeo said, “instead of running away from any media attention that is directed at him.”