A Police Assault on a Disabled Black Man Under Color of Law; A Monstrous Action
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, a Rochester Police Department (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 kicking him in the head and aiding in his handcuffing.
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 charges.
It came out around the time of the incident (and at trial) that officers Ferrigno and Liberatore had had an altercation on the previous day. Ferrigno got into a verbal altercation with a Black woman and punched her in the face. The woman’s ex-husband and her sons saw the punch and jumped on the officer. Liberatore joined the fray losing his name plate in the process. All of the civilians were arrested. The attack on Mr. Warr must be seen as retaliation against the community on Jefferson Avenue. The next day, the officers wanted to make an example of someone to reassert their power and authority–to scare the community into compliance. Benny Warr, the most apparent, vulnerable person on the block, eating an ice cream cone, became the target of police retaliation and abuse of power.
A Miscarriage of Justice
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 tats, 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.
Mr. Charles Burkwit, Benny’s attorney, has put forward a motion to set aside the verdict. If the judge denies the verdict, an appeal is next.
Benny’s Quality of Life
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, and physical mobility issues, namely being unable to use his prosthesis.
It’s such sorrow to have watched Benny suffer and deteriorate over these five and a half years, lose his spirit and the capacities of his lively mind, to withdraw socially (speaking mostly from his wheelchair in the doorway of his room). His fears and suffering are profound. I see the slight means and great heart of his family. The jury went home to gardens and cooking in pretty kitchens. Benny and Nina went back to a life of unbelievable poverty and heartbreaking demands. To see for myself their overwhelming bills and Benny’s need for continuing physical and mental health care, and hear it all dismissed as gold-digging shows me there is so little justice in our inexact and cruel “justice” system. Soon Benny’s increasingly crushed “good” foot and the swelling callouses on his underarms and hands caused by the crutches he depends on (since he can no longer walk alone after this vile abuse) will limit his life to two rooms. The jury’s verdict is a shameful passing off of responsibility. This man was harmed by police officers known for their viciousness, in a city that does not hold police to account, and then again injured by a jury that could not hear beyond the faint, pale voices of their own experience. For Benny, his one shot at justice and restitution was destroyed by coordinated tricks and lies from his tormentors and decided by a jury of ones fears.
The same demands that were shouted by Enough Is Enough after this cruel abuse of power happened, are shouted again:
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!
1. Please donate. Mr. Warr has medical expenses, mental health expenses, pain expenses, and two medical liens against him. Anything you can donate is appreciated.
2. We’ll give updates about a Community Solidarity and Love Potluck Dinner to held in honor of Benny and Pastor Warr to raise funds for them. The date, time, and location are TBA at this point.
3. Write letters to the editor of your favorite newspaper decrying this verdict and the police abuse suffered by Mr. Warr.