Jury Deliberating Whether White Rochester Cops were Justified Knocking Black Man Out of his Wheelchair & Beating Him in a Fetal Position at the Bus Stop After He Disturbed the Peace of the Masters

From [HERE] Almost six years after Benny Warr's arrest during a highly publicized confrontation with white police officers — an incident caught on cellphone cameras and shared widely on social media — a jury will try to decide just what happened and who was at fault.

Did the officers wrongly arrest Warr, who has a prosthetic leg and was sitting in a wheelchair, and then brutally beat him, as he claims?

Or did Warr intend to stage a scene, have a friend capture it on a cellphone, and then hope it could lead to a successful lawsuit?

These are the dueling tales that a federal jury has heard in a civil lawsuit over the past week. And, after closing arguments from the defense on Thursday afternoon, the jury now must decide which version is supported by the evidence — proof that included video from cellphones and city Blue Light cameras.

Even that video evidence lent itself to different interpretations, as Warr's attorney, Charles Burkwit, said it supported Warr's story and proved that the police had lied in their claims about the incident, while city attorney Spencer Ash said, "This video footage is an ally of ours."

What video showed, and what testimony proved, was that shortly after 8 p.m. May 1, 2013, Warr was sitting outside a Jefferson Avenue office, eating an ice cream cone, as police drove by. According to testimony, the police shouted at a crowd gathered near Warr — but apparently not with him — to disperse. Police say business owners and residents often complain about loitering in the 500 block of Jefferson Avenue, where Warr was, and where drug activity is rampant.

Warr then crossed the street to a parking lot near a bus stop. He said he was waiting for a bus when Officers Anthony Liberatore and Joseph Ferrigno approached him. He testified that he was again told to move, but said he was simply waiting for the bus.

Police allege that Warr yelled profanities at them before he crossed the street, and continued to do so when they approached him near the bus stop. Because he had drawn an unruly crowd, they said, they had decided to charge him with disorderly conduct. He then fought back from his wheelchair, and, as they struggled to get his arms behind him, they had to use force and pepper spray to subdue him, police said. During the confrontation, he tumbled from the wheelchair — was pushed out, Warr said.

Police acknowledged that they kneed him in the abdomen, and Liberatore brought a powerful elbow down upon Warr's head as Warr was on the ground — uses of force that police said were by the book, especially given that Warr, who weighs 250-plus pounds, continued to fight back.

Warr said that he lay in the fetal position as he was beaten. "It was just happening so fast that I couldn't really see anything," he said.

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.

Challenging claims

Warr has contended that he suffered three fractured ribs and a brain injury and has post-traumatic stress symptoms. Ash challenged those claims, noting that Warr previously suffered from chronic pain and drug addiction (Warr has been clean for years, testimony showed), and twice brought lawsuits claiming physical injuries — once against a movie theater in which a seat collapsed and another time against the driver of a vehicle in a car accident.

Plus, Ash said, if the beating was so brutal, why was there no photographic evidence to support it. Medical records reported only abrasions the night of the incident, Ash said.

"Why is there not one picture to present of how badly you were beaten and injured," Ash asked Warr, during Warr's testimony. 

"I don't know," Warr answered.

Burkwit said that the police fabricated rationale for the arrest after the beating. Ferrigno has said that Warr appeared to be involved in dice games and possible vice activity before the arrest, yet the Blue Light cameras showed nothing to corroborate that claim.

Plus, Burkwit said, had Warr been as unruly as the officers claimed when they first passed by the Jefferson Avenue block, why did they not approach him then instead of waiting until he was across the street.

"Mr. Warr wasn't saying any profanities," Burkwit said in his closing. "That's why these officers left him alone. ... They're trying to justify this arrest."

The officers grew irritated when Warr refused to leave the bus stop, Burkwit said, and that prompted the attempted arrest. "This was a planned attack," he said. "They were not going to take 'no' for an answer."

Also sued is Police Sgt. Mitchell Stewart.

U.S. Magistrate Judge Marian Payson ruled Thursday that Stewart could not be considered in a wrongful arrest claim, because he arrived after the incident started, but could still be considered in an excessive force claim. Liberatore and Ferrigno face both civil claims of wrongdoing.

Payson this week dismissed claims against former Police Chief James Sheppard, who was accused of improperly supervising the officers, who were largely exonerated in an internal review.

The jury is scheduled to begin deliberations Friday.