On August 25, 2015, Benny Warr was back in federal court before Judge Marian Payson. Specifically, his lawyer Charles F. Burkwit, was demanding—again—that the City of Rochester hand over the discovery documentation that it was ordered to turn over in April. Mr. Burkwit has been battling with the city for discovery for over a year—since May 15, 2014 when he originally served papers on the city. In response, the city has been unwilling or unable to give Mr. Burkwit the requested documentation.

On May 1, 2013, Benny T. Warr was waiting for the bus in his motorized wheelchair at the intersection of Bartlett St. and Jefferson Ave., near his home. As he was waiting for the bus, a Rochester police cruiser rolled up to the intersection and told people to move on. When they approached Mr. Warr, he responded by saying he was only waiting for the bus. According to Mr. Warr, the officers then maced him in the face and proceeded to throw him out of his chair where he was kicked, punched, and kneed by police while on the ground. He was put in handcuffs for nearly two hours until he received care at Strong Memorial Hospital for his injuries. He sustained broken and fractured ribs, numbness in his hands, neck injuries, internal injuries, and cuts on his wrists. The attack left him with nightmares, flash-backs, short-term memory loss, a change in personality, and physical mobility issues such as being unable to use his prosthesis.

In January of 2015, Mr. Burkwit filed a motion to compel the city to release discovery documentation in federal court. What made the August 25 hearing so unique, was that Mr. Burkwit used a different tactic: rather than continuing to battle with the city, he subpoenaed the Center for Dispute Settlement (CDS), the non-profit corporation that administers the Civilian Review Board (CRB), as well as the panelists who reviewed Mr. Warr’s case. The subpoenas demanded all documentation regarding complaints of excessive force from 2011 to 2014.

Going back, Mr. Warr filed a civil suit against the city, then-Police Chief James Sheppard, Sgt. Mitchell Stewart, and officers Joseph M. Ferrigno and Anthony R. Liberatore on September 19, 2013. The lawsuit seeks monetary damages, legal fees, and a change in policy regarding “policies and customs of ‘Operation Cool Down,’ ‘Clearing the Block’ and/or ‘Clearing the Street’” that would restrict officers from “aggressively approach[ing], stop[ping] and engag[ing] citizens . . . without reasonable suspicion that a crime is occurring” and that this “policy or custom violates and infringes upon the constitutional rights [of the people of Rochester, NY] to be free from unlawful stops, searches and seizures and excessive force.”

At court that day, aside from the 12 – 15 Benny Warr supporters, were the city’s lawyer Spencer Ash, CDS’s lawyer, Ted Kantor, President and CEO of CDS Sherry Walker-Cowart, and Director Police/Community Relations Programs Frank Liberti. The folks from CDS seemed nervous at the hearing. From what was gleaned, they ought to be nervous.

Starting with Mr. Warr’s case, some very important details came out. The first detail was that Mr. Warr’s excessive force complaint was, in fact, reviewed by the CRB. This revelation was a complete turnaround from what Ash had stated in open court through an affidavit dated November 7, 2014, where he wrote that “there was no Civilian Review Board review of this matter.” The officers who were caught on video brutalizing Mr. Warr were exonerated by the CRB—meaning the board ruled in the officers’ favor.

Another detail in Mr. Warr’s case involved two CRB panelists who made questionable comments on their voting sheets. The comments and the panelists deserve to be investigated. One commented on Sgt. Andrew McPherson specifically. The actual comment was not read in open court. Mr. Burkwit argued that his client had a right to know what made Sgt. McPherson special enough to be commented on by the panelist.

Another CRB panelist who reviewed Mr. Warr’s complaint was quoted by Mr. Burkwit in open court as writing on the voting sheet, “There are times—Civilian Review Board training may not be adequate enough to agree with Professional Standards Section’s findings.”

Both comments are extremely problematic. If the court allows city attorney Ash to discuss the outcome of the CRB review with the jury at Mr. Warr’s trial and Mr. Burkwit is denied the opportunity to depose the panelists who heard Mr. Warr’s complaint, then this would create severe prejudice in the jury as Mr. Burkwit would be unable to adequately defend his client.

Judge Payson began by denying the motion to depose the panelists. After the issues regarding the comments were raised, she reserved decision on whether or not they could be deposed.

Let’s move onto details about the CRB process itself. The city provided some documentation to Mr. Burkwit with each consecutive order from the judge. This leads us to the first important detail regarding the CRB process: 49% of excessive force complaintsfrom 2011 to 2014 (72 complaints out of 146) apparently were not investigated by Professional Standards Section (PSS). City attorney Ash restated his case numerous times in court that he had handed over to Mr. Burkwit all documentation requested and ordered by the judge.

Mr. Burkwit explained that there were three parts to each excessive force complaint, that he needs, in order for the complaint to be of any use: the PSS investigation and summary, the findings and voting sheets of the CRB panelists in each complaint, and the chief of police’s final determination in each complaint.

Of the 146 excessive force complaints registered between 2011 to 2014 that the judge had previously ordered the city to provide, Mr. Burkwit has gotten 74 PSS summaries (including Mr. Warr’s), 2 findings and voting sheets from the CRB (Mr. Warr’s case and PSS case No. 09-0971, which was ordered disclosed by the judge), and 14 final determinations from the chief (one is for Mr. Warr’s case). There are, at this point, apparently 72 unaccounted for civilian complaints regarding excessive use of force that do not appear to have a PSS record number. Also, apparently none of the 72 complaints have been investigated by PSS, passed onto the CRB for a determination, and then ruled on by the chief as per the CRB law and the city’s own website. The only case where Mr. Burkwit has been able to put the three puzzle pieces together are his client’s—Mr. Benny T. Warr.

Judge Payson pointed out to Ash that when it comes to excessive force, the city’s website regarding the CRB is clear:

“If your complaint includes excessive force or charges an officer with a crime, it will also be reviewed by a Civilian Review Board (CRB). The Board includes three citizens who are not members of the Police Department. The CRB will review your complaint, statements from all witnesses and reports from the investigation. The CRB may ask for additional information before making its recommendations to the Police Chief. The CRB may also choose to interview witnesses. The Police Chief reviews investigations and makes the final decision on all complaints.”

When the judge asked Ash why Mr. Burkwit had only 74 PSS investigative summaries (one being Mr. Warr’s) but only two CRB findings (again, one being Mr. Warr’s) and 14 final determinations from the chief of police (of which one was connected to Mr. Warr), his response was lukewarm. Ash said, “Your honor, I work in the law department for the city. The law department is not apart of the Rochester Police Department,” completely brushing off the judge’s direct question and the legislation that gives the CRB power.

Another eye-opening detail about the CRB process itself is that when the CRB transmits its findings to the chief of police, they do not do it on their own or directly. According to CDS’s attorney, Ted Kantor, the CRB leaves a voicemail message on the phone at the PSS office, which is then transcribed. That transcription is then transmitted to the chief of police by PSS—not the CRB.

When Judge Payson asked attorney Kantor about the CRB process, he also revealed that when the CRB panelists are deliberating on a complaint, there is no recording or stenographic transcription of their deliberations. Each panelist marks on their own tally sheet how they are voting. They have the option of leaving a comment on the sheet if they want. Aside from the voicemail and the transcription done by a PSS officer, no other record exists.

Court concluded with some very specific orders from the judge. City attorney Ash has until September 8 to provide an affidavit from the head of PSS, Lieutenant Michael Callari, explaining that PSS does not have the chief’s findings or the CRB findings. Mr. Burkwit was given until September 1 to send the judge a letter outlining the cases he’s asked for, what he has, and what’s missing.

Mr. Burkwit complied–will city attorney Ash?

Additional information: Ivery & Warr in court: Demand city hand over excessive force documentation | Professional Standards Section: How they work (at least on paper) | Exonerating police misconduct: no accountability in Benny Warr case