lipford suit
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UNITED STATES DISTRICT COURTWESTERN DISTIRCT OF NEW YORK----------------------------------------------------------------------- X
INDEX NO.:
ECF CASE
COMPLAINT
[JURY TRIAL DEMANDED]
DELMAR LIPFORD,
Plaintiffs,
-against-
THE CITY OF ROCHESTER, a municipal entity, POLICEOFFICER ALEXANDER BALDAUF, ID # 2182 POLICEOFFICER RICKEY J. HARRIS JR., ID # 2191,SERGEANT JOSH LEWIS, SERGEANT HENRYRIVERA, ID # 1024, LIEUTENANT “SA”, ID # 1147, andPOLICE OFFICERS “JOHN DOES 1-10” (names andnumber of whom are unknown at present), and other
unidentified members of the Rochester Police Department,
Defendants.
----------------------------------------------------------------------- X
Plaintiff DELMAR LIPFORD, by his attorney, ELLIOT DOLBY-SHIELDS,
complaining of the defendants, respectfully allege as follows:
I. PRELIMINARY STATEMENT
1. This is a civil rights action against the City of Rochester (“CITY”) and the
Rochester Police Department (“RPD”) officers for stopping, searching, assaulting and battering
Plaintiff DELMAR LIPFORD without cause, lying about their conduct, and falsely charging him
with violations he did not commit, namely, intentionally blocking vehicular traffic with an intent
to cause annoyance or alarm, and intentionally striking a police officer. As a result of
Defendants’ unlawful actions, Plaintiff, and indeed thousands of other individuals in the City of
Rochester, have been unnecessarily forced to endure the humiliation, burden, damage and
negative collateral consequences of being falsely charged with violations and crimes, put through
the criminal justice system, and compelled to return to court multiple times—all for violations
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crimes which Plaintiff did not commit and which, shockingly, the charging police officers knew
he did not commit. Plaintiff seeks to recover damages for Defendants’ improper stop, illegal
search, assault, battery, use of excessive use of force, and abuse of process in violation of the
Fourth and Fourteenth Amendments to the United States Constitution and state common law.
2. On or about April 20, 2015, Plaintiff DELMAR LIPFORD visited his mother
at her home after a long day of work. Plaintiff left his mother’s house at approximately 10:30 PM
to drive home. During his trip home, while stopped at a red light at the intersection of Culver
Road and East Main Street, Plaintiff exited his vehicle and had a short conversation with
individuals in the neighboring vehicle. After approximately one minute, and while the traffic
light was still “red,” Plaintiff was reentering his vehicle when he was suddenly approached by
Defendant POLICE OFFICER ALEXANDER BALDAUF. Defendant BALDAUF immediately
yelled at Plaintiff to “get on the fucking curb,” shoved him several times in a violent and
aggressive manner, punched Plaintiff in the face, and then pointed his TASER at Plaintiff and
threatened to TASE him. The only reason that Defendant BALDAUF did not TASE Plaintiff,
upon information and belief, is because an unknown witness yelled at Defendant BALDAUF,
“do not shoot him, I am recording you, I saw you beat him for no reason.” Defendant
BALDAUF then ordered Defendant POLICE OFFICER RICKY HARRIS to handcuff and arrest
Plaintiff. Thereafter, despite knowing Plaintiff did not commit a crime, the Defendant POLICE
OFFICERS attempted to justify their unlawful use of force by arresting Plaintiff and by falsely
accusing him of violating NY CPL §§ 240.20(5) and 240.26(1) in official police paperwork.
3. Defendants’ unlawful use of force against Plaintiff was caused by and is part
of a pervasive and entrenched pattern of misconduct by the RPD relating to utilizing force
without justification, including the use of excessive force in effectuating arrests. The RPD’s
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policy, practice and custom of utilizing force without justification is caused by the willful failure
of the Defendant CITY and the RPD to discipline officers that engage in misconduct, including
the failure to discipline officers who use force without justification. In fact, the Defendant CITY
and the RPD’s process for reviewing force incidents was designed and implemented to exonerate
officers who use excessive force.
4. The Defendant CITY, through the RPD, has historically failed to discipline
officers who use force without justification. This overt failure to discipline has created a culture
within the RPD that encourages officers—such as Defendants BALDAUF and HARRIS—to
routinely and repeatedly use excessive force in effectuating arrests, and to lie in police
paperwork in an attempt to justify their unlawful actions.
5. Plaintiff, like countless other black men in the City of Rochester, was
subjected to excessive force, and then falsely charged and prosecuted for violations he did not
commit based on the lies of the officers who charged him. Plaintiff is entitled to damages for
Defendants’ unconstitutional actions.
II. JURISDICTION
6. Plaintiff brings this action for compensatory damages, punitive damages, and
attorney’s fees pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988 for violations of his civil
rights, as said rights are secured by said statutes and the Constitutions of the State of New York
and the United States.
7.
Plaintiff brings this action pursuant to 42 U.S.C. §§ 1983 and 1988, and the
First, Fourth and Fourteenth Amendments to the United States Constitution. Jurisdiction is
conferred upon this court by 28 U.S.C. §§ 1331, 1343(3) and (4) and the aforementioned
statutory and constitutional provisions.
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8. Plaintiff further invokes this Court’s supplemental jurisdiction, pursuant to 28
U.S.C. § 1367, over any and all State law claims and causes of action which derive from the
same nucleus of operative facts and are part of the same case or controversy that gives rise to the
federally based claims and causes of action.
III. VENUE
9. Venue is proper for the United States District Court for the Western District of
New York, pursuant to 28 U.S.C. § 1391(a), (b) and (c) and § 1402(b) because the claims arose
in this district.
IV. JURY DEMAND
10. Plaintiff respectfully demands a trial by jury of all issues in this matter
pursuant to Fed. R. Civ. P. 38(b).
V. THE PARTIES
11. Plaintiff DELMAR LIPFORD is a citizen of the United States and a resident
of the City of Rochester, County of Monroe, State of New York.
12. Defendant CITY OF ROCHESTER was and is a municipal corporation duly
organized and existing under and by virtue of the laws of the State of New York.
13. Defendant CITY OF ROCHESTER maintains the City of Rochester Police
Department (“RPD”), a duly authorized public authority and/or police department, authorized to
perform all functions of a police department as per the applicable sections of the New York State
Criminal Procedure Law, acting under the direction and supervision of the aforementioned
municipal corporation, THE CITY OF ROCHESTER.
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14. That at all times hereinafter mentioned, Defendant POLICE OFFICER
ALEXANDER BALDAUF was a duly sworn police officer of the RPD and was acting under the
supervision of said department and according to his official duties.
15. Defendant POLICE OFFICER ALEXANDER BALDAUF is being sued
in his individual capacity and official capacity.
16. That at all times hereinafter mentioned, Defendant POLICE OFFICER
RICKY HARRIS was a duly sworn police officer of the RPD and was acting under the
supervision of said department and according to his official duties.
17.
Defendant POLICE OFFICER RICKY HARRIS is being sued in his
individual capacity and official capacity.
18. That at all times hereinafter mentioned, Defendant SERGEANT JOSH
LEWIS was a duly sworn police officer of the RPD and was acting under the supervision of said
department and according to his official duties.
19. Defendant SERGEANT JOSH LEWIS is being sued in his individual
capacity and official capacity.
20. That at all times hereinafter mentioned, Defendant SERGEANT HENRY
RIVERA was a duly sworn police officer of the RPD and was acting under the supervision of
said department and according to his official duties.
21. Defendant SERGEANT HENRY RIVERA is being sued in his individual
capacity and official capacity.
22. That at all times hereinafter mentioned, Defendant LIEUTENANT “SA”, ID #
1147, was a duly sworn police officer of the RPD and was acting under the supervision of said
department and according to his official duties.
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23. Defendant LIEUTENANT “SA”, ID # 1147, is being sued in his
individual capacity and official capacity.
24.
Defendant POLICE OFFICERS “JOHN DOES” 1-10 (individually,
“Defendant OFFICER JOHN DOE __”), were duly sworn police officers of said department and
were acting under the supervision of said department and according to their official duties.
25. Rochester POLICE OFFICERS “JOHN DOES” 1-10 are being sued in
their individual capacities and official capacities.
26. At all times relevant herein, the Defendant POLICE OFFICERS either
personally or through their employees, were acting under color of state law and/or in compliance
with the official rules, regulations, laws, statutes, customs, usages and/or practices of the State of
New York or City of Rochester, New York.
27. Each and all of the acts of the Defendant POLICE OFFICERS alleged herein
were done by said defendants while acting within the course and scope of their duties and
functions as agents, servants, employees and officers of the Defendant CITY OF ROCHESTER.
28.
Plaintiff in furtherance of his causes of action brought pursuant to New York
State law filed a timely Notice of Claim against the CITY OF ROCHESTER, in compliance with
the Municipal Law Section 50.
29. More than thirty (30) days have elapsed since service of said Notice of Claim
was filed and THE CITY OF ROCHESTER has failed to pay or adjust the claim.
VI. STATEMENT OF FACTS
30. Plaintiff DELMAR LIPFORD is a 34-year-old black man, father and college
graduate, who is employed as a residential counselor at Villa of Hope, where he is responsible
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for providing a therapeutic, nurturing, structured and positive milieu to emotionally,
psychiatrically and/or behaviorally challenged youth.
31.
At the time of the incident complained of herein, Plaintiff was employed at a
company called Eurest.
32. On April 20, 2015, Plaintiff worked all day at Eurest and then visited his
mother at her home on Melville Street in the City of Rochester.
33. After visiting his mother, Plaintiff began driving home when he stopped at a
red light at the intersection of Culver Road and East Main Street, Rochester, New York.
34.
While Plaintiff was stopped at the red light, an occupant of the vehicle
stopped in the right lane next to Plaintiff’s vehicle threw something out the window.
35. After attempting to speak to the individuals in the neighboring vehicle through
his window to no avail, Plaintiff exited his vehicle and had a conversation with the occupants of
the neighboring vehicle, and then began walking back to reenter his vehicle.
36. Upon information and belief, Plaintiff was outside of his vehicle for less than
one minute.
37. Upon information and belief, the traffic light was red the entire time Plaintiff
was outside of his vehicle.
38. While Plaintiff was reentering his vehicle, Defendant BALDAUF suddenly
approached Plaintiff in a very aggressive manner, causing Plaintiff to fear for his physical safety.
39. Upon information and belief, Defendant BALDAUF did not have reasonable
or lawful grounds to formulate a reasonable suspicion that Plaintiff had engaged in illegal
activity of any kind.
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40. Thereafter, Defendant BALDAUF screamed at Plaintiff to, “get on the
fucking curb,” without lawful purpose, in an inappropriate exercise of his powers and authority
as a police officer.
41. Plaintiff complied with Defendant BALDAUF’s order and began walking
towards the curb.
42. While Plaintiff was walking towards the curb, Defendant BALDAUF shoved
Plaintiff twice in the back in a very forceful and aggressive manner, without lawful purpose, in
an inappropriate exercise of his powers and authority as a police officer.
43.
After Defendant BALDAUF shoved Plaintiff the second time, Plaintiff
stumbled onto the curb, turned around to face Defendant BALDAUF, and raised both of his
hands in the air above his head in a non-threatening / surrendering manner.
44. After he was facing Defendant BALDAUF with his hands above his head,
Plaintiff told Defendant BALDAUF, “you don’t have to shove me.”
45. In response, Defendant BALDAUF shoved Plaintiff in the chest in a very
forceful and aggressive manner, without lawful purpose, in an inappropriate exercise of his
powers and authority as a police officer.
46. Immediately thereafter, Defendant BALDAUF punched Plaintiff in the face
without justification or any lawful purpose, in an inappropriate exercise of his powers and
authority as a police officer.
47. Immediately thereafter, Defendant BALDAUF unholstered his TASER and
pointed it at Plaintiff, without justification or any lawful purpose, in an inappropriate exercise of
his powers and authority as a police officer.
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48. Upon information and belief, the only reason Defendant BALDAUF did not
shoot Plaintiff with the TASER is because an unknown female witness shouted at Defendant
BALDAUF “don’t shoot him he didn’t do anything to you, I saw you punch him for no reason, I
am recording you.”
49. Upon information and belief, Defendant BALDAUF shoved, punched, and
pointed his TASER at Plaintiff pursuant the RPD’s continuing custom or practice of condoning
police officers’ use of excessive force in the course of effectuating arrests and to penalize
individuals for questioning their authority, in the absence of any reasonable justification or
lawful purpose for the amount of force used.
50. Thereafter, while still pointing his TASER gun at Plaintiff, Defendant
BALDAUF ordered Plaintiff to put his hands behind his back.
51. Defendant BALDAUF did not have reasonable or lawful grounds to support
reasonable cause to believe that Plaintiff had engaged in any illegal activity of any kind.
52. At no time did Plaintiff commit a crime.
53.
At no time was Plaintiff blocking vehicular traffic.
54. At no time did Plaintiff resist arrest or intentionally strike Defendant
BALDAUF.
55. Defendant BALDAUF did not have probable cause to arrest Plaintiff.
56. Nevertheless, while still pointing his TASER at Plaintiff, Defendant
BALDAUF ordered Defendant HARRIS to handcuff Plaintiff without legal justification or
probable cause.
57. Defendant HARRIS handcuffed Plaintiff MR. LIPFORD without legal
justification or probable cause.
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58. Defendant HARRIS was present throughout the entire interaction between
Defendant BALDAUF and Plaintiff, and knew that Plaintiff had not committed a crime or
violated the law in any way.
59. Defendant HARRIS had the time and access to intervene to stop and/or
prevent the unlawful assault, battery, use of excessive force and false arrest of Plaintiff but chose
not to.
60. The excessive force used in shoving and punching Plaintiff resulted in injuries
to the Plaintiff.
61.
These injuries include bruising and swelling to the Plaintiff.
62. At or around this time, Defendant SERGEANT LEWIS arrived at the scene.
63. Upon information and belief, Defendant BALDAUF told Defendant LEWIS
that Plaintiff assaulted him, and that is why he was being arrested.
64. Upon information and belief, Plaintiff explained to Defendant LEWIS that he
did not assault Defendant BALDAUF, but instead that Defendant BALDAUF shoved him,
punched him in the face, and threatened to shoot him with his TASER gun for no reason.
65. Defendant BALDAUF did not sustain any physical injuries and it would have
been apparent to Defendant LEWIS that Plaintiff did not assault Defendant BALDAUF.
66. It would have been apparent to any reasonable supervising police officer that
Plaintiff did not assault Defendant BALDAUF.
67. Further, Defendant BALDAUF, upon information and belief, has a long
history of using excessive force against individuals in the City of Rochester and fabricating
allegations of criminal conduct against those individuals in an attempt to justify his use of
excessive force; thus, it should have been apparent to Defendant LEWIS that Defendant
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BALDAUF was fabricating allegations against Plaintiff to justify his use of excessive force
against Plaintiff.
68.
At no time did the Defendant POLICE OFFICERS recover any guns, drugs, or
contraband of any kind from Plaintiff.
69. Plaintiff was handcuffed and placed under arrest without legal justification or
probable cause.
70. Defendant LEWIS had the time and access to intervene to stop and/or prevent
the unlawful arrest of Plaintiff but chose not to.
71.
Defendant LEWIS chose not to intervene to stop and/or prevent the unlawful
arrest of Plaintiff pursuant to the continuing custom, practice and/or policy of the RPD
condoning RPD Officers use of excessive force in the course of effectuating arrests.
72. Thereafter, a Defendant POLICE OFFICER placed Plaintiff MR. LIPFORD
in the back of a police car and transported him against his will to the Monroe County Jail (the
“Jail”).
73.
Plaintiff MR. LIPFORD was detained at the Jail until the following morning
when he posted bond and was released from custody.
74. Plaintiff MR. LIPFORD was charged with one count of violating P.L. §
240.20(5), Disorderly Conduct, and one count of P.L. § 240.26(1), Harassment.
75. Defendant BALDAUF falsely swore out the criminal complaints against
Plaintiff.
76. Plaintiff committed neither offense.
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77. Defendant SERGEANT HENRY RIVERA and Defendant LIEUTENANT
“SA,” Shield # 1147, reviewed and approved the arrest paperwork prepared by Defendant
BALDAUF.
78. It would have been apparent to any reasonable supervising police officer
reviewing the arrest paperwork prepared by Defendant BALDAUF that Plaintiff did not assault
Defendant BALDAUF, or commit any crime or violation.
79. It would have been apparent to any reasonable supervising police officer
reviewing the arrest paperwork prepared by Defendant BALDAUF that Plaintiff was arrested
and charged with violations in an attempt to justify Defendant BALDAUF’s unlawful actions.
80. Defendant BALDAUF, upon information and belief, has a long history of
using excessive force against individuals in the City of Rochester and fabricating allegations of
criminal conduct against those individuals in an attempt to justify his use of excessive force;
thus, it should have been apparent to Defendant RIVERA and Defendant LIEUTENANT “SA,”
Shield # 1147 that Defendant BALDAUF was fabricating allegations against Plaintiff to justify
his use of excessive force against Plaintiff.
81. Defendant RIVERA and Defendant LIEUTENANT “SA,” Shield # 1147, had
the time and access to intervene to void the unlawful arrest of Plaintiff but chose not to.
82. Defendant RIVERA and Defendant LIEUTENANT “SA,” Shield # 1147,
chose not to intervene to void the unlawful arrest of Plaintiff pursuant to the continuing custom,
practice and/or policy of the RPD condoning RPD Officers use of excessive force in the course
of effectuating arrests.
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83. As a result, Plaintiff was forced to appear before the Court on multiple
occasions to answer Defendant BALDAUF’S and/or the other Defendant POLICE OFFICERS’
baseless charges levied against Plaintiff to conceal their unlawful actions on April 20, 2015.
84. Upon information and belief, all charges against Plaintiff were dismissed on
or about June 9, 2015.
85. Upon information and belief, the Defendant POLICE OFFICERS’ arrest of
Plaintiff was a “contempt of cop” and/or “cover charge” arrest.
86. Upon information and belief, “contempt of cop” and “cover charge” charges
such as disorderly conduct, resisting arrest, and harassment are relatively easy for police to levy
in the absence of actual probable cause because they can be levied solely upon the allegations of
the arresting officer(s) without reference to physical evidence or witness observation of criminal
acts.
87. Upon information and belief, the Defendant POLICE OFFICERS’ effectuated
the “contempt of cop” and/or “cover charge” arrest of Plaintiff in an attempt to justify Defendant
BALDAUF’s use of excessive force against Plaintiff.
88. Upon information and belief, Defendant BALDAUF’s use of force against
Plaintiff was caused by the Defendant CITY and RPD’s widespread and routine utilization of
excessive force in effectuating arrests.
89. The Defendant CITY is deliberately indifferent to the widespread and routine
practice of RPD officers utilizing excessive force in effectuating arrests.
90. Further, upon information and belief, Defendant BALDAUF violated RPD
rules and policies by failing to complete a “Subject Resistance Report” in connection with
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Plaintiff’s arrest, which is required to be completed by RPD Officers following every incident in
which physical force is used in effectuating an arrest.
91.
Upon information and belief, to date, Defendant CITY has not implemented
any curative training, oversight measures or policies designed or intended to curtail the
widespread and routine practice of RPD officers utilizing excessive force in effectuating arrests.
92. During all of the foregoing wrongful acts committed against Plaintiff, not one
of the Defendant POLICE OFFICERS intervened on Plaintiff’s behalf so as to prevent the
violation of Plaintiff’s constitutional rights, despite having realistic opportunities to do so.
93.
As a result of the foregoing, Plaintiff sustained, inter alia, physical pain,
mental injuries, emotional distress, embarrassment, humiliation and deprivation of his common
law and constitutional rights.
94. As a result of the foregoing, Plaintiff demands judgment against Defendants in
an amount of money to be determined at trial.
FIRST CLAIM FOR RELIEF
DEPRIVATION OF FEDERAL CIVIL RIGHTS UNDER 42 U.S.C. § 1983
95. Plaintiff MR. LIPFORD re-alleges each and every allegation contained in the
above paragraphs with the same force and effect as if fully set forth herein.
96. All of the aforementioned acts of the Defendant CITY, and the Defendant
POLICE OFFICERS and their agents, servants and employees (“Defendants”), were carried out
under the color of state law.
97. All of the foregoing acts by Defendants deprived Plaintiff of federally
protected rights, including, but not limited to, the right:
a. Not to be deprived of liberty without due process of law;
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b. To be free from seizure and arrest not based upon probable cause;
c. To freedom from being subjected to false criminal charges by the police;
d.
To freedom from excessive force;
e. To freedom from retaliatory prosecution;
f. To freedom from abuse of process; and
g. To freedom of speech and expression.
98. All of the aforementioned acts deprived Plaintiff of the rights, privileges and
immunities guaranteed to citizens of the United States by the First, Fourth, and Fourteenth
Amendments to the Constitution of the United States of America, and in violation of 42 U.S.C. §
1983.
99. The acts complained of were carried out by the aforementioned individual
defendants in their capacities as police officers with all of the actual and/or apparent authority
attendant thereto.
100. The acts complained of were carried out by the aforementioned individual
defendants in their capacities as police officers, pursuant to the customs, usages, practices,
procedures, and the rules of Defendant CITY and the RPD, all under the supervision of ranking
officers of said department.
101. As a result of the above constitutionally impermissible conduct, Plaintiff
was caused to suffer personal injuries, violation of his civil rights, emotional distress, anguish,
anxiety, fear, humiliation, loss of freedom, legal expenses and damage to his reputation and
standing within his community.
102. Accordingly, Plaintiff demands judgment against Defendants in a sum of
money to be determined at trial.
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114. As a result, Plaintiff was damaged, harmed and injured, and seeks
compensation in an amount to be determined at trial.
THIRD CLAIM FOR RELIEF
FALSE IMPRISONMENT AND ARREST UNDER
NEW YORK STATE LAW
115. Plaintiff re-alleges each and every allegation contained in the above
paragraphs with the same force and effect as if fully set forth herein.
116. As a result of the aforesaid conduct by the Defendant CITY and the
Defendant POLICE OFFICERS, Plaintiff was unlawfully detained and confined.
117. The Defendant POLICE OFFICERS–––in performance of their duties
with powers and authorities designated upon them by the Defendant CITY–––intentionally
confined Plaintiff.
118. Plaintiff was at all times consciously aware of his confinement by the
Defendant POLICE OFFICERS.
119.
At no point throughout Plaintiff’s unlawful detention and confinement by
the Defendant POLICE OFFICERS did Plaintiff consent to said confinement.
120. At no point throughout Plaintiff’s unlawful detention and confinement by
the Defendant POLICE OFFICERS were the actions of the Defendant POLICE OFFICERS
otherwise privileged.
121.
As a result of Defendants’ impermissible conduct, Plaintiff was injured
and harmed. Accordingly, Plaintiff demands judgment against Defendants in a sum of money to
be determined at trial.
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FOURTH CLAIM FOR RELIEF
ASSAULT UNDER NEW YORK STATE LAW
122. Plaintiff repeats, reiterates, and re-alleges each and every allegation
contained in the above paragraphs with the same force and effect as if fully set forth herein.
123. Defendant BALDAUF shoved Plaintiff multiple times in the chest and
back.
124. Defendant POLICE OFFICERS punched Plaintiff in the face.
125. Defendant POLICE OFFICERS pointed a TASER at Plaintiff.
126. The Defendant POLICE OFFICERS placed Plaintiff in handcuffs, despite
not having probable cause for his arrest.
127. The handcuffs were too tight, and were left on for unreasonable periods of
time.
128. By the aforedescribed conduct, the Defendant POLICE OFFICERS, their
agents, servants and employees, acting within the scope of their employment, intentionally,
willfully and maliciously assaulted Plaintiff in that they had the real or apparent ability to cause
imminent harmful and/or offensive bodily contact and intentionally did a violent and/or
menacing act which threatened such contact to the Plaintiff, and that such acts caused
apprehension of such contact in the Plaintiff.
129.
Defendants were at all times agents, servants, and employees acting within
the scope of their employment by the Defendant CITY and the RPD, which are therefore
responsible for their conduct.
130. The Defendant CITY, as the employer of defendants, is responsible for
their wrongdoing under the doctrine of respondeat superior.
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FIFTH CLAIM FOR RELIEF
BATTERY UNDER NEW YORK STATE LAW
131. Plaintiff MR. LIPFORD re-alleges each and every allegation contained in
the above paragraphs with the same force and effect as if fully set forth herein.
132. The Defendant POLICE OFFICERS shoved Plaintiff multiple times in the
chest and back.
133. The Defendant POLICE OFFICERS punched Plaintiff in the face.
134. The Defendant POLICE OFFICERS placed Plaintiff in handcuffs, despite
not having probable cause for his arrest.
135. The handcuffs were too tight, and were left on for unreasonable periods of
time.
136. By the aforedescribed conduct, the Defendant POLICE OFFICERS, their
agents, servants and employees, acting within the scope of their employment, intentionally,
willfully and maliciously battered Plaintiff, when they, in a hostile and/or offensive manner
struck Plaintiff without his consent and with the intention of causing harmful and/or offensive
bodily contact to the Plaintiff and caused such battery.
137. Defendants were at all times agents, servants, and employees acting within
the scope of their employment by the Defendant CITY and the RPD, which are therefore
responsible for their conduct.
The Defendant CITY, as the employer of defendants, is responsible for their
wrongdoing under the doctrine of respondeat superior.
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146. The individual Defendant POLICE OFFICERS, including but not limited
to Defendant HARRIS, Defendant LEWIS, Defendant Rivera and Defendant “SA” Shield # 1147
all had an affirmative duty to intervene on Plaintiff’s behalf to prevent the violation of his
constitutional rights by the other Defendant POLICE OFFICERS.
147. The individual Defendant POLICE OFFICERS failed to intervene on
Plaintiff’s behalf to despite having had realistic opportunities to do so.
148. The individual Defendant POLICE OFFICERS failed to intervene on
Plaintiff’s behalf despite having substantially contributed to the circumstances within which
Plaintiff rights were violated by their affirmative conduct.
149. As a result of the aforementioned conduct of the individual Defendant
POLICE OFFICERS, Plaintiff’s constitutional rights were violated.
150. As a result of the aforementioned conduct of the Defendant POLICE
OFFICERS, Plaintiff’s constitutional rights were violated.
151. As a result, Plaintiff was damaged, injured and harmed, and seeks
compensation in an amount to be determined at trial.
EIGHTH CLAIM FOR RELIEF
DEPRIVATION OF PLAINTIFFS’ RIGHTS AS GUARANTEED BY THE
NEW YORK STATE CONSTITUTION
152. Plaintiff re-alleges each and every allegation contained in the above
paragraphs with the same force and effect as if fully set forth herein.
153. As a result of the aforesaid conduct of the Defendant CITY and the
Defendant POLICE OFFICERS, Plaintiff was deprived of rights guaranteed to him by the New
York State Constitution, including though not limited to the right of the people to be secure in
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their persons, houses, papers and effects, against unreasonable searches and seizures as described
in Article I §12 of the New York State Constitution.
154.
The acts complained of were carried out by the Defendant POLICE
OFFICERS in their capacities as police officers, with all of the actual and/or apparent authority
attendant thereto, pursuant to the customs, usages, practices, procedures, and the rules of the
Defendant CITY and the Rochester Police Department.
155. The Defendant POLICE OFFICERS and the Defendant CITY, collectively
and individually, while acting under color of state law violated Plaintiff constitutional rights by
engaging in conduct proscribed by the New York State Constitution.
156. As a result of Defendants’ impermissible conduct, Plaintiff was injured
and harmed. Accordingly, Plaintiff demands judgment against Defendants in a sum of money to
be determined at trial.
NINTH CLAIM FOR RELIEF
NEGLIGENCE UNDER NEW YORK STATE LAW
157.
Plaintiff re-alleges each and every allegation contained in the above
paragraphs with the same force and effect as if fully set forth herein.
158. The Defendant CITY was negligent in the hiring and retention of the
Defendant POLICE OFFICERS as follows:
A. Upon information and belief, Defendant CITY failed to use reasonable
care in the hiring and retention of the Defendant POLICE OFFICERS
who conducted and participated in the acts of subjecting Plaintiff to an
unlawful stop, unlawful seizure, unlawful search, false arrest, false
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imprisonment, assault, battery, use of excessive force and violations of
his constitutional rights in the manners described herein.
B.
Defendant CITY knew, or should have known in the exercise of
reasonable care, the propensities of the aforesaid Defendant POLICE
OFFICERS to engage in the wrongful conduct heretofore alleged in
this complaint.
159. Defendant CITY was negligent in the training and supervision of the
Defendant POLICE OFFICERS as follows:
A.
Defendant CITY knew or should have known that the requirements,
guidelines, and terms of its training for the Defendant POLICE
OFFICERS were insufficient and inadequate to prevent the Defendant
POLICE OFFICERS from engaging in the wrongful conduct
heretofore alleged in this complaint.
B. Defendant CITY knew or should have known that it failed to supervise
the Defendant POLICE OFFICERS, including but not limited to
Defendant BALDAUF and Defendant HARRIS, because it failed to
discipline, reprimand, punish or retrain Defendant BALDAUF and
Defendant HARRIS in response to prior instances of alleged
misconduct, including but not limited to the events giving rise to the
lawsuit IVERY v. BALDAUF, et al., Docket # 14-CV-6041-DGL-JWF
(W.D.N.Y. 2014).1
1 See Complaint, IVERY v. BALDAUF, et al., Docket # 14-CV-6041-DGL-JWF (W.D.N.Y. 2014). Complaint
incorporated by reference herein. See also John Hnd, Lawsuit: police beat man without casue, DEMOCRAT & CHRONICLE (Feb. 5, 2014), available at
http://www.democratandchronicle.com/story/news/local/2014/02/04/lawsuit-police-beat-man-without-
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160. Defendant THE CITY is also liable to Plaintiff on the basis of respondeat
superior as a result of the constitutionally-impermissible actions of the Defendant “John Doe”
POLICE OFFICERS as described herein.
161. As a result of Defendants’ impermissible conduct, Plaintiff was injured
and harmed. Accordingly, Plaintiff demands judgment against Defendants in a sum of money to
be determined at trial.
TENTH CLAIM FOR RELIEF
MALICIOUS ABUSE OF PROCESS UNDER NEW YORK STATE LAW
162. Plaintiff re-alleges each and every allegation contained in the above
paragraphs with the same force and effect as if fully set forth herein.
163. The police officers, individually and in concert with, conspiring with,
and/or aiding and abetting one another, employed a regularly issued criminal legal process
against Plaintiff by placing Plaintiff under arrest.
164.
The Defendant POLICE OFFICERS arrest Plaintiff in order to obtain
collateral objectives outside the legitimate ends of the legal process, to wit, to cover up their
assault of Plaintiff and violation of Plaintiff’s rights.
165. The Defendant POLICE OFFICERS acted with intent to do harm to
Plaintiff, with actual malice, without excuse or justification.
166. Defendants were at all times agents, servants, and employees acting within
the scope of their employment by the Defendant CITY and the RPD, which are therefore
responsible for their conduct.
cause/5205185/ (last visited Apr. 7, 2016). Article and videos embedded within article incorporated by reference
herein.
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167. The Defendant CITY, as the employer of defendants, is responsible for
their wrongdoing under the doctrine of respondeat superior.
ELEVENTH CLAIM FOR RELIEF
RESPONDEAT SUPERIOR UNDER NEW YORK STATE LAW
168. Plaintiff re-alleges each and every allegation contained in the above
paragraphs with the same force and effect as if fully set forth herein.
169. The police officers that detained and arrested Plaintiff, and who
committed the other wrongs against the Plaintiff described herein, whether named individual
herein or not, were employees of the Defendant CITY.
170. At all relevant times, these police officers were acting within the scope of
their employment and on behalf of the Defendant CITY.
171. Defendant CITY is responsible for the torts of these police officers, and
for the consequences of their actions generally, under the theory of respondeat superior.
172. As a result of Defendants’ impermissible conduct, Plaintiff was injured
and harmed. Accordingly, Plaintiff demand judgment against Defendants in a sum of money to
be determined at trial.
TWELFTH CLAIM FOR RELIEF
MUNICIPAL LIABILITY UNDER MONELL
UNDER 42 U.S.C. § 1983ARISING FROM UNCONSTITUTIONAL MUNICIPAL POLICES
RELATING TO THE RPD’S CUSTOM, PRACTICE, AND POLICY OF
UNLAWFULLY EMPLOYING EXCESSIVE FORCE IN THE COURSE OF
EFFECTUATING ARRESTS
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173. Plaintiff re-alleges each and every allegation contained in the above
paragraphs with the same force and effect as if fully set forth herein.
174.
The Defendant CITY and the RPD maintain an unconstitutional policy,
practice and custom of RPD officers employing excessive force in the course of effectuating
arrests and during non-arrest interactions with individuals in the City of Rochester.
175. Use of force is a defining issue in modern policing. Police officers are
entrusted, empowered, and in certain circumstances, obligated to use force against citizens. In
exchange for this grant of power, citizens require that the use of force be governed by a set of
standards. These standards stem from the Fourth Amendment to the United States Constitution,
which requires that the use of force must be reasonable. Reasonable use of force and
constitutional policing practices require equality in the treatment of individuals, proper
application of force, and accountability for officers that use force without justification.
176. Upon information and belief, the Defendant CITY and the RPD lack any
standards governing RPD officers’ use of force.
177.
Upon information and belief, RPD officers regularly employ unreasonable
and excessive force in the course of effectuating arrests and during non-arrest interactions with
individuals in the City of Rochester, in violation of the Fourth Amendment.
178. Upon information and belief, RPD officers’ excessive use of force is often
motivated by a desire to punish the arrestee for the arrestee’s perceived failure to display the
degree of deference or subservience demanded by the arresting officers.
179. Upon information and belief, RPD officers’ excessive use of force is often
motivated in whole or in part by a custom or practice of racism of victimization, not of hate,
whereby minority individuals are subjected to force without justification due to the perceived
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lack of social and/or political power to hold officers accountable for their unjustified use of
force.
180.
Such force is employed in the absence of any objective circumstances
presented to the RPD officers that could support the application of such force.
181. The Defendant CITY and the RPD have historically and persistently failed
to discipline RPD officers who engage in misconduct and violate individuals’ civil rights—
including the particularly troubling failure to discipline officers that have repeatedly used force
without justification.
182.
The Defendant CITY and the RPD has had actual and/or constructive
knowledge of the pervasive and widespread practice of RPD officers use excessive force for
many years, yet neither the Defendant CITY nor the RPD have done anything to end the practice.
183. The Defendant CITY and the RPD are deliberately indifferent to the
pervasive and widespread practice of RPD officers’ use of excessive force. In fact, the Defendant
CITY and the RPD have repeatedly condoned and even rewarded RPD officers’ use force
without justification.
184. The Defendant CITY and the RPD have persistently failed to discipline
Defendant BALDAUF and Defendant HARRIS, despite their repeated use of force without
justification.
185. The Defendant CITY and the RPD have failed to train RPD officers
regarding the constitutional rights of arrestees to be free from excessive force.
186. The RPD has never undertaken any internal study of the use of excessive
force by its officers, and statistics on these practices are not available. However, there is
extensive evidence of a permanent, longstanding, and widespread practice of RPD officers’ use
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of force without justification, and the failure of the Defendant CITY and the RPD to take any
remedial action.
THE CITY OF ROCHESTER AND THE ROCHESTER POLICE DEPARTMENT HAVE HADPRIOR NOTICE OF RPD OFFICER’S REPEATED USE OF EXCESSIVE FORCE BUT
HAVE PERSISTENTLY FAILED TO DISCIPLINE SUCH OFFICERS
187. The Defendant CITY and the RPD have been on notice of the
unconstitutional policy, practice and custom of RPD officers employing excessive force in the
course of effectuating arrests and during non-arrest interactions with individuals in the City of
Rochester since at least 1992, when former RPD Chief Gordon F. Urlacher pleaded guilty to a
felony conspiracy charge that he knew about civil rights abuses of five RPD officers, including
the repeated use of excessive force, but did nothing to stop the officers’ unlawful actions.2
188. Publicly available data shows that since 2002, at least five (5) RPD
Officers have been accused of using excessive force on multiple occasions in civil rights
lawsuits, Notices of Claim, and/or civilian complaints; however, upon information and belief,
none of these officers were ever reprimanded, suspended, retrained on the use of force, or
otherwise disciplined by the Defendant CITY or the RPD. The majority of these lawsuits and
claims were settled by the Defendant CITY. Upon information and belief, the incidents described
below constitute only a small fraction of the incidents wherein the identified officers used force
without justification. Upon information and belief, the officers identified below constitute only a
small fraction of the RPD officers that have used and been accused of using excessive force on
multiple occasions, but have never been disciplined by the Defendant CITY or the RPD for the
unjustified use of such force.
2 Civil Rights Trial Is Likely to Leave a Long-Term Mark on Rochester Police, N.Y. Times (Apr. 6, 1993),
http://www.nytimes.com/1993/04/06/nyregion/civil-rights-trial-is-likely-to-leave-a-long-term-mark-on-rochester-
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RPD OFFICER THOMAS RODRIGUEZ
189. RPD Officer Thomas Rodriguez has been named as a defendant in
multiple civil rights lawsuits alleging that he used excessive force, but, upon information and
belief, has never been reprimanded, suspended, retrained on the use of force, or otherwise
disciplined by the Defendant CITY or the RPD.
190. In 2008, the Defendant CITY settled a civil rights lawsuit brought by the
family of Lawrence Rogers, Waters v. City of Rochester, et al ., which alleged that several RPD
officers, including RPD officer Thomas Rodriguez, used excessive force against Mr. Rogers
during an incident on August 31, 2002, causing his death.
3
191. Upon information and belief, RPD Officer Thomas Rodriguez was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the incident underlying Waters v. City of Rochester, et al .
192. Thereafter, in 2013, the City of Rochester paid $35,000 to settle a civil
rights lawsuit, Sanders et al v. City of Rochester et al ., which alleged that RPD officer Thomas
Rodriguez used excessive force against one of the plaintiffs, Ann Marie Sanders, a 100-pound
woman, during an incident on May 10, 2007.4
193. Upon information and belief, RPD Officer Thomas Rodriguez was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the incident underlying Sanders et al v. City of Rochester et al .
3 See Amended Complaint and Docket entry No. 54, Waters v. City of Rochester, et al ., 03-CV-06505-CJS-MWP
(W.D.N.Y. 2004). Complaint incorporated by reference herein.4 See Complaint and Docket entries No. 33 and 34, Sanders et al. v. City of Rochester, et al ., 09-cv-06566-CJS-JWF
(W.D.N.Y. 2009). Docket report incorporated by reference herein.
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RPD OFFICER THEODORE WILSON
194. RPD Officer Theodore Wilson has been named as a defendant in multiple
civil rights lawsuits alleging that he used excessive force, but, upon information and belief, has
never been reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the
Defendant CITY or the RPD following any of those incidents.
195. In 2009, RPD Officer Theodore Wilson was named as a defendant in a
civil rights lawsuit, Loria v. City of Rochester, et al., 09-cv-6095(CJS)(JWF), which alleged that
RPD Officer Wilson used excessive force against Mr. Loria during an incident on May 19, 2009,
causing Mr. Loria to suffer a strain and a fracture to his right shoulder.
5
In October 2015, Mr.
Loria reached a global settlement of all of his claims against the City of Rochester and RPD
officer Theodore Wilson arising from the 2009 incident, and two other civil rights lawsuits Mr.
Loria subsequently filed against the City.6 One of the subsequent lawsuits included in the global
settlement, Loria v. City of Rochester, et al., 12-cv-6229 (CJS)(JWF), alleged that on April 1,
2012, Mr. Loria was pulled over without cause and ordered to exit his vehicle at gunpoint by six
(6) RPD officers, who made multiple threats of physical harm to Mr. Loria, including that he
would be “dead” if he made any sudden moves;7 Mr. Loria alleged that he believed the RPD
Officers would have shot and killed him if several witnesses had not been standing on the side of
the road watching the incident.8
196. Upon information and belief, RPD Officer Theodore Wilson was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
5 See Complaint at ¶ 24–28, 35, Loria v. City of Rochester, et al ., 09-cv-06095-CJS-JWF (W.D.N.Y. 2009).
Complaint incorporated by reference herein.6 See Docket Entry No. 58, id . Docket numbers of other cases were Docket Nos. 11-CV-6555 and 12-CV-6229.
Docket report incorporated by reference herein.7 See Complaint at ¶ 11, Loria v. City of Rochester et al., 12-CV-6229 (W.D.N.Y. Apr. 24, 2012). Complaintincorporated by reference herein.8 See Complaint at ¶ 16, id .
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CITY or the RPD following incident underlying Loria v. City of Rochester, et al., 09-cv-
6095(CJS)(JWF). Upon information and belief, none of the RPD Officers involved in the
incident underlying Loria v. City of Rochester, et al., 12-cv-6229 (CJS)(JWF) were ever
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the April 1, 2012 incident where they unlawfully stopped and
assaulted Mr. Loria.
197. Thereafter, RPD Officer Theodore Wilson was named as a defendant in
Pagan v. City of Rochester et al., a civil rights lawsuit in which Miguel Pagan again accused
Officer Wilson of using excessive force during an incident that occurred on or about May 19,
2012. 9 In that case, RPD Officer Theodore Wilson is accused of body-slamming Mr. Pagan onto
his police car and then onto the ground, and shooting Mr. Pagan with his TASER.10
198. Upon information and belief, RPD Officer Theodore Wilson was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the incident underlying Pagan v. City of Rochester et al.
RPD OFFICER ELIUD RODRIGUEZ
199. RPD Officer Eliud Rodriguez has been named as a defendant in multiple
civil rights lawsuits alleging that he used excessive force, but, upon information and belief, has
never been reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the
Defendant CITY or the RPD following any of those incidents.
200. In 2002, Officer Rodriguez and his partner were named as defendants in a
civil rights lawsuit, Richards v. City of Rochester, et al ., where they were accused of using
excessive force during the arrest of Edward S. Richards, a mentally impaired man, on July 15,
9 See Complaint at 5. A., Pagan v. City of Rochester, et al ., 12-cv-00800-MAT (W.D.N.Y. Aug 24, 2012).Complaint incorporated by reference herein.10 See id .
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2001.11 The Defendant CITY settled the lawsuit known as Richards v. City of Rochester, et al .,
for $40,000.00.12
201.
Upon information and belief, RPD Officer Rodriguez was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the incident underlying Richards v. City of Rochester, et al .
202. On June 21, 2012, RPD Officer Eliud Rodriguez was one of seven RPD
Officers who shot and killed Israel Andino on Locust Street in Rochester.13 Upon information
and belief, the RPD Officers, including Officer Rodriguez, knew that Israel Andino had been
diagnosed with bipolar disorder when they responded to the 911 call on June 21, 2012. Israel
Andino’s mother, Carmen Baez, filed a lawsuit, Baez v. City of Rochester et al., alleging that the
Rochester police officers, including RPD Officer Rodriguez, were "deliberately indifferent" to
Mr. Andino's serious medical and psychological needs, and that his fatal injuries "were caused
directly through the neglect, carelessness, and lack of skill" of the officers.14
203. Upon information and belief, RPD Officer Rodriguez was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the incident giving rise to the lawsuit known as Baez v. City of
Rochester et al .
11 See Complaint, Richards v. City of Rochester, et al ., 02-cv-6473-JFW (W.D.N.Y. 2002). Complaint incorporated
by reference herein.12 See Docket No. 59, id. Docket report incorporated by reference herein.13 See Forsyth, T., Rally Denounced RPD Murder of Israel “Izzy” Andino! , INDYMEDIA (June 28, 2012),
http://rochester.indymedia.org/node/49305 (last visited Dec. 8, 2014). Article incorporated by reference herein.14 See Complaint, Baez v. City of Rochester, et al ., 13-cv-6625-CJS-JFW (W.D.N.Y. 2013). Complaint incorporated
by reference herein.
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RPD OFFICER MARIO “COWBOY” MASIC
204. Upon information and belief, RPD Officer Mario Masic, a/k/a the
“Cowboy,”15 has been named as a defendant in multiple civil rights lawsuits, and will be named
as a Defendant in at least one additional civil rights lawsuit that will be filed shortly after the
filing of the complaint in this action, each of which allege that “Cowboy” used excessive force in
the course of effectuating arrests; however, upon information and belief, Officer Masic has never
been reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the
Defendant CITY or the RPD.
205.
On May 12, 2011, RPD Officer Mario Masic falsely arrested and assaulted
a woman named Emily Good.16 As reported by CNN, after Rochester police pulled over an
African American motorist and began searching his vehicle in front of Ms. Good’s home, Ms.
Good began filming the search because she was concerned it was motivated by racial profiling.
Ms. Good filmed the encounter from her front yard.17 When Ms. Good refused Officer Masic’s
request to stop filming, Officer Masic assaulted and falsely arrested Ms. Good. Thereafter
Officer Masic falsely charged Ms. Good with Obstruction of Governmental Administration in an
attempt to justify his unlawful actions. The Monroe County District Attorney eventually
dismissed all charges against Ms. Good, stating, "[b]ased upon the evidence, we could not make
15 Upon information and belief, citizens of Rochester who have been repeatedly assaulted and subjected to excessive
force by PO Mario Masic gave him the nickname “Cowboy.” However, Officer Masic has embraced the name, andis notorious for referring to himself as the “Cowboy” when speaking with citizens in Rochester.16 See Solomon, Jessee, Charges dismissed against woman who videotaped police encounter , CNN (June 27, 2011),
http://www.cnn.com/2011/CRIME/06/27/new.york.police.video/ (last visited Dec. 7, 2014). Article incorporated byreference herein.17 Id.
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out the elements of the crime charged.”18 Upon information and belief, the Emily Good settled
her civil claims with the City of Rochester prior to the initiation of a lawsuit.19
206.
Upon information and belief, RPD Officer Mario Masic was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the incident where he falsely arrested and assaulted Emily Good.
207. In 2012, RPD Officer Mario Masic and several other RPD officers were
named as defendants in a civil rights lawsuit, Jones et al. v. City of Rochester et al ., which
alleged the RPD Officers, including Officer Masic, used excessive force against Plaintiff Alesha
Jones, by, inter alia, punching Ms. Jones in the mouth and knocking out her tooth.
20
208. Upon information and belief, RPD Officer Mario Masic was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the incident underlying Jones et al. v. City of Rochester, et al .
209. On September 18, 2018, RPD Officer Mario Masic arrested Quintin Keene
in a laundromat on Genessee Street, Rochester, New York, and charged him with resisting arrest.
All the criminal charges were eventually dismissed. In the course of arresting Mr. Keene, Officer
Masic pepper sprayed Mr. Keene, body-slammed him onto the ground, and told Mr. Keene if he
did not stop moving he was going to be shot. Mr. Keene plans to file a civil rights lawsuit
naming against Officer Masic for his of excessive force and the Defendant CITY for its
deliberate indifference to RPD Officers use of force without justification shortly after the filing
of this complaint.
18 Id.19 See Gary Craig, Emily Good files notice to sue city, DEMOCRAT & CHRONICLE (Aug 10, 2011) (article on file with
Plaintiff’s attorney). Article incorporated by reference herein.20 See Complaint at ¶ 11, Jones et al. v. City of Rochester, et al ., 12-cv-06082-EAW (W.D.N.Y. 2012). Complaint
incorporated by reference herein.
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210. Upon information and belief, RPD Officer Mario Masic was never
reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the Defendant
CITY or the RPD following the incident on September 18, 2018 where he used excessive force
in the course of effectuating the false arrest of Mr. Keene.
RPD OFFICER JOSEPH FERRIGNO II
211. RPD Officer Joseph Ferrigno II has been named as a defendant in at least
three civil rights lawsuits that alleged he used excessive force against arrestees; additionally,
Officer Ferrigno has been the subject of at least twenty-three (23) complaints of misconduct
reviewed by the RPD’s Professional Standards Section (“PSS”), many of which involved
allegations of excessive force; however, upon information and belief, Officer Ferrigno has never
been reprimanded, suspended, retrained on the use of force, or otherwise disciplined by the
Defendant CITY or the RPD.
212. In April 2011, RPD Officer Joseph Ferrigno II was named as a defendant
in a civil rights lawsuit, Turner v. City of Rochester et al., in which he was accused of using
excessive force against the Plaintiff, Robin Turner, during an incident that occurred on or about
September 12, 2010.21
In that case, Ms. Turner claimed to have known Officer Ferrigno for
many years as she was a chronic victim of domestic violence by her spouse, and Officer Ferrigno
was often the reporting officer to her frequent 911 calls.22 From her prior encounters with Officer
Ferrigno, “Plaintiff had always known Officer Ferrigno to be an arrogant, inconsiderate bully
who on many occasion, [sic] lay the blame for the abuse she was suffering at home upon her, and
would fail to report certain actions taken against her by her partner.”23
In, Turner v. City of
21 See Complaint, Turner v. City of Rochester, et al ., 11-cv-6200-DGL-MWP (W.D.N.Y. Apr. 15, 2011). Complaint
incorporated by reference herein.22 Id .23 See Complaint at ¶ 15, id .
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Rochester et al., Plaintiff alleged that she called 911 to report that she’d been assaulted by a
teenager in her neighborhood, and Officer Ferrigno responded and refused to file a police
report.24 Thereafter, Ms. Turner called 911 and complained about Officer Ferrigno’s actions and
asked for a sergeant to be sent to the scene; instead, Officer Ferrigno returned and retaliated
against Ms. Turner by body slamming her onto the ground, dragging her across the ground
approximately 10 feet, and arresting her.25 As a result of the excessive force used by Officer
Ferrigno, Ms. Turner suffered a broken rib; however, when Ms. Turner requested a medical
attention, Officer Ferrigno refused to call an ambulance. Upon information and belief, the
Defendant CITY settled the lawsuit known as Turner v. City of Rochester et al . on or about July
1, 2014.26
213. Upon information and belief, Officer Ferrigno was never reprimanded,
suspended, retrained on the use of force, or otherwise disciplined by the Defendant CITY or the
RPD following the incident underlying Turner v. City of Rochester et al .
214. In May 2015, RPD Officer Joseph Ferrigno II was named as a defendant
in a civil rights lawsuit, Williams v. City of Rochester et al., in which he was accused of using
excessive force against Darren Williams during an incident that occurred on or about May 11,
2012. In that case, Officer Ferrigno is accused of hitting Mr. Williams while he was sitting down,
throwing him on the ground, punching and kicking him in his body and head, and stating to the
plaintiff, “nigger, I’m going to teach you to respect authority.”27 This case was pending as of the
date this complaint was filed.28
24 Id . at 19–22.25 Id . at ¶ 20–40.26 See Docket No. 27, id. Docket report incorporated by reference herein.27 See Complaint at ¶ 30–36, Williams et al. v. City of Rochester, et al ., 15-cv-06274-MAT-MWP (W.D.N.Y. May 7,2015). Complaint incorporated by reference herein.28 See Docket Entry No. 9, id. Docket report incorporated by reference herein.
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215. Upon information and belief, Officer Ferrigno was never reprimanded,
suspended, retrained on the use of force, or otherwise disciplined by the Defendant CITY or the
RPD following the incident giving rise to Williams v. City of Rochester et al .
216. On May 1, 2013, RPD Officers Joseph M Ferrigno II and Anthony R.
Liberatore brutally beat and falsely arrested Benny Warr, a 52-year-old African American
wheelchair-bound amputee, while he was waiting for a RTS bus at the intersection of Jefferson
and Bartlett Streets.29 As reported by the Democrat & Chronicle, Mr. Warr testified to the RPD’s
Professional Standards Section “that he was maced, thrown to the ground and struck after he
responded to an order to move by telling officers that he was just waiting for a bus.”
30
The
incident between Mr. Warr and RPD Officers Ferrigno and Liberatore was caught on video by
several bystanders31 and the RPD’s Blue Light Cameras.32
217. RPD Officers Ferrigno and Libertore were never reprimanded, suspended,
retrained on the use of force, or otherwise disciplined by the Defendant CITY or the RPD
following the incident giving rise to the lawsuit known as Warr et al. v. Libertore et al .
218.
On April 1, 2016, RPD Officer Joseph Ferrigno shot a Rochester man
three or four times under suspicious circumstances. Specifically, after stopping a car backing out
of a driveway on Immel Street in Rochester, Officer Ferrigno shot Silvon Simmons three or four
times. As of the filing of this Complaint, Officer Ferrigno and the RPD claim that Mr. Simmons
29 See Complaint, Warr, et al. v. City of Rochester, et al ., 13-cv-6508-DLG-MWP (W.D.N.Y. Sept. 19, 2013).
Complaint incorporated by reference herein.30
Erica Bryant, Whatever happened to Benny Warr, DEMOCRAT & CHRONICLE (Dec. 7, 2013),http://www.democratandchronicle.com/story/news/local/2013/12/06/erica-bryant-what-ever-happened-to-benny-
warr-/3895715/ (last visited Apr. 10, 2016). Article incorporated by reference herein.31 See Cell phone video taken by Ms. Tashay Young, a/k/a Shakur Mohammed, originally posted to YouTube on
May 4, 2013, and later edited and reposted on June 24, 2013, Corrected Higher Resolution Video of Benny Warr Being Attacked , https://www.youtube.com/watch?v=7xifmR0C3Mk&nohtml5=False (last visited Apr. 10, 2016).
Video incorporated by reference herein. 32 See RPD Blue Light Camera video posted to YouTube, edited footage from cop cam on May 1 st of Benny Warr
attack , https://www.youtube.com/watch?v=47vo2WVcWY0 (last visited Apr. 10, 2016). Video incorporated by
reference herein.
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shot at Officer Ferrigno first; however, no gun was recovered from Mr. Simmons’ person, the
vehicle he was driving, or from the immediate vicinity where Mr. Simmons fell to the ground
after being shot three or four times by Officer Ferrigno. In fact, as reported by the Democrat &
Chronicle, the gun the RPD alleges Mr. Simmons used to shoot at Officer Ferrigno was
recovered from behind the house located at 9 Immel Street, one house over from the house in
front of which Silvon Simmons was stopped and shot.33
219. While Officer Ferrigno has been placed on administrative duty pursuant to
RPD protocol pending the internal investigation of the incident that led him to shoot Silvon
Simmons three or four times, it is unlikely that the shooting of Silvon Simmons will be
thoroughly investigated, if it is investigated at all, and even more unlikely that Officer Ferrigno
will be disciplined, even if the evidence shows his actions in shooting Silvon Simmons three or
four times was objectively unreasonable. This unfortunate reality is evidenced by the failure of
the Defendant CITY and RPD to discipline Officer Ferrigno in response to the three incidents
described in paragraphs 210–216, supra, and the Defendant CITY and RPD’s constitutionally
deficient policies and procedures with respect to the investigation and review of force incidents,
and its historic and persistent failure to discipline officers that use force without justification.
THE CITY OF ROCHESTER AND THE ROCHESTER POLICE DEPARTMENT’SPOLICIES AND PROCEDURES RELATED TO INVESTIGATING USE OF FORCE
INCIDENTS ARE CONSTITUTIONALLY DEFICIENT AND DEMONSTRATE THE CITY’SDELIBERATE INDIFFERENCE TO RPD OFFICERS’ USE OF EXCESSIVE FORCE
220.
In defiance of clear constitutional commands, the Defendant CITY and the
RPD have enforced and/or failed to rectify a policy, practice and custom of condoning police
33 See Will Cleveland, Police ID man accused of shooting at cop, DEMOCRAT & CHRONICLE (Apr. 5, 2016),http://www.democratandchronicle.com/story/news/2016/04/05/police-id-man-accused-shooting-cop/82660942/ (last
visited Apr. 10, 2016). Article incorporated by reference herein.
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conduct that has been previously adjudicated to be in violation of civil rights, including the use
of force without justification. The Defendant CITY and the RPD’s persistent failure to discipline
RPD Officers that have violated individuals’ civil rights by, inter alia, the use of excessive force
constitutes an unlawful municipal policy of ratifying unconstitutional conduct.
221. The Defendant CITY and the RPD’s abject failure to discipline officers
even where overwhelming evidence demonstrates the officer used excessive force has many
causes, including but not limited to:
a. the lack of any clearly defined use-of-force policy to guide
individual RPD officers on what actions constitute “force” or
“excessive force”;
b. the lack of any formal policy requiring RPD officers to report force
incidents, leading to the inaccurate documentation of force
incidents;
c. the lack of any clearly defined procedure for documenting and
reporting force incidents;
d. the lack of any formal and comprehensive method for collecting
force data;
e. the lack of any RPD policies requiring officers to de-escalate
encounters with the public;
f. the lack of any RPD training for officers as to de-escalation of
encounters with the public;
g. the Defendant CITY’s constitutionally deficient process for
investigating and reviewing use-of-force incidents;
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h. the Defendant CITY’s failure to track use-of-force incidents;
i. the Defendant CITY and RPD’s failure to monitor RPD Officers
that have a known history of abusive conduct, including the use of
excessive force; and
j. the failure of the Defendant CITY and the RPD to follow their own
written procedures regarding the investigation of civilian
complaints of excessive force.
222. The Defendant CITY publicly claims that all civilian complaints,
including excessive force complaints, are investigated according to specific procedures.
34
According to the Defendant CITY, if an individual files a complaint alleging police misconduct,
Command Officers from the RPD’s internal affairs unit, known as the Professional Standards
Section (“PSS”), will first conduct an investigation that includes interviewing the complainant,
the officers, and any witnesses named in the complaint.35 If the “complaint includes excessive
force or charges an officer with a crime, it will also be reviewed by a Civilian Review Board
(CRB),” which “includes three citizens who are not members of the Police Department.” 36
Specifically, “[t]he CRB will review [the] complaint, statements from all witnesses and reports
from the investigation” conducted by the Professional Standards Section. 37 As part of it’s
investigation, “[t]he CRB may also choose to interview witnesses.”38 After the CRB concludes
34 City of Rochester, ROCHESTER POLICE DEPARTMENT CITIZEN COMPLAINT PROCESS,
http://www.cityofrochester.gov/rpdcomplaintprocess/ (last visited Apr. 10, 2016). Article incorporated by referenceherein.35 Id . 36 Id .37 Id .38 Id .
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its investigation, it makes a recommendation to the Police Chief.39 Finally, “[t]he Police Chief
reviews investigations and makes the final decision on all complaints.”40
223.
However, as detailed in proceedings in Warr, et al., v. Liberatore, et al.,
between 2011 and 2014, the Defendant CITY apparently did not complete the required
investigation of civilian complaints of excessive force in even one out of 146 cases.41 In an
August 25, 2015 hearing, the Defendant CITY explained that in response to the plaintiff’s
discovery requests, it had produced all records created by the PSS, CRB and the RPD Police
Chief in each of the 146 civilian complaints alleging excessive force referred to the CRB
between 2011 and 2014
42
—but in every single one of the 146 cases, the Defendant CITY failed
to complete all of the required investigatory records.43 Specifically, the Defendant CITY was
only able to produce PSS Investigative Summaries in 64 of the 146 cases, but was unable to
provide corresponding CRB Investigative Summaries or RPD Police Chief Review Reports in
any of those cases.44
224. Moreover, in direct contravention to the Defendant CITY’s public claim
that “[t]he Police Chief reviews investigations and makes the final decision on all complaints,”45
at the August 25, 2015 Hearing, counsel for the Defendant CITY admitted that the RPD Chief
only reviews the PSS or CRB Investigative Findings “when there’s some special facts and
circumstances,” and that based on the deposition of former RPD Chief James Sheppard and
39 Id .40
Id .41 See Transcript of Proceedings on Motion to Quash Subpoena on Center for Dispute Settlement at 27:14–21, Warr,
et al. v. City of Rochester, et al ., 13-cv-6508-DLG-MWP (W.D.N.Y. Aug. 25, 2015) (hereinafter, “August 25, 2015
Transcript”). August 25, 2015 Transcript incorporated by reference herein. See also Answering Affidavit, Doc. No.
62, id . (hereinafter, “Burkwit Affidavit”). Burkwit Affidavit incorporated by reference herein.42 August 25, 2015 Transcript at 29:4–15, 30:7–8.43 See id. 27:14–21; see also Burkwit Affidavit at ¶ 22–23, and Ex. C to Burkwit Affidavit.44 Ex. C to Burkwit Affidavit; August 25, 2015 Transcript at 29:4–15.45 City of Rochester, ROCHESTER POLICE DEPARTMENT CITIZEN COMPLAINT PROCESS,
http://www.cityofrochester.gov/rpdcomplaintprocess/(last visited Apr. 10, 2016).
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counsel’s “review of all the files” that the RPD “Chief does not look at every single CRB finding
and present a report.”46
225.
The complaint of Benny Warr against RPD Officers Joseph M Ferrigno II
and Anthony R. Liberatore related to the incident that occurred on May 1, 2013, perfectly
illustrates the constitutional deficiencies in the RPD’s use-of-force review process. Officers
Ferrigno and Libertore were recorded by RPD Blue Light Cameras47 and witnesses cell phone
cameras48 brutally beating Benny Warr, a 52-year-old African American man and wheelchair-
bound amputee, while he was waiting for a RTS bus at the intersection of Jefferson and Bartlett
Streets.
49
As reported by the Democrat & Chronicle, Mr. Warr testified to the RPD’s
Professional Standards Section “that he was maced, thrown to the ground and struck after he
responded to an order to move by telling officers that he was just waiting for a bus.” 50 Mr.
Warr’s PSS testimony was corroborated by witness’ cell phone51 videos and RPD Blue Light
Camera video.52
226. Upon information and belief, the PSS investigation found that Officer
Libertore utilized an elbow strike to Benny Warr’s head while Mr. Warr was lying face down on
46 See August 25, 2015 Transcript at 30:9–21.47 See RPD Blue Light Camera video posted to YouTube, edited footage from cop cam on May 1 st of Benny Warrattack , https://www.youtube.com/watch?v=47vo2WVcWY0 (last visited Apr. 10, 2016). Video incorporated byreference herein.48 See Cell phone video taken by Ms. Tashay Young, a/k/a Shakur Mohammed, originally posted to YouTube on
May 4, 2013, and later edited and reposted on June 24, 2013, Corrected Higher Resolution Video of Benny Warr
Being Attacked , https://www.youtube.com/watch?v=7xifmR0C3Mk&nohtml5=False (last visited Apr. 10, 2016).Video incorporated by reference herein. 49 See Complaint, Warr, et al. v. City of Rochester, et al ., 13-cv-6508-DLG-MWP (W.D.N.Y. Sept. 19, 2013).
Complaint incorporated by reference herein.50
Erica Bryant, Whatever happened to Benny Warr, DEMOCRAT & CHRONICLE (Dec. 7, 2013),http://www.democratandchronicle.com/story/news/local/2013/12/06/erica-bryant-what-ever-happened-to-benny-
warr-/3895715/ (last visited Apr. 10, 2016). Article incorporated by reference herein.51 See Cell phone video taken by Ms. Tashay Young, a/k/a Shakur Mohammed, originally posted to YouTube on
May 4, 2013, and later edited and reposted on June 24, 2013, Corrected Higher Resolution Video of Benny Warr Being Attacked , https://www.youtube.com/watch?v=7xifmR0C3Mk&nohtml5=False (last visited Apr. 10, 2016).
Video incorporated by reference herein. 52 See RPD Blue Light Camera video posted to YouTube, edited footage from cop cam on May 1 st of Benny Warr
attack , https://www.youtube.com/watch?v=47vo2WVcWY0 (last visited Apr. 10, 2016). Video incorporated by
reference herein.
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the ground, and determined that the elbow strike was an untrained technique under RPD
standards.
227.
Upon information and belief, the PSS investigation also found that before
Officer Libertore utilized the untrained elbow strike to Mr. Warr’s head, he stated to Mr. Warr,
“are you ready to get your ass kicked.”
228. Upon information and belief, officer Libertore explained to PSS that:
He knew that he was under arrest. The only way he was
going to leave was in an ambulance, meaning that we were
definitely going to have to get physical and that either he
was going to have to be hurt, or one of us were going to be
hurt.
229. Any reasonable person reviewing the PSS findings, Officer Ferrigno’s
PSS testimony, and the videos of Officers Ferrigno and Libertore pepper-spraying Benny Warr,
pushing his wheel chair over, and repeatedly striking Mr. Warr in the head and body while Mr.
Warr was lying face down on the ground could only describe the force used by Officers Ferrigno
and Libertore as objectively unreasonable and excessive.
230. Nevertheless, the PSS and CRB each recommended to the RPD Chief of
Police James Sheppard that Officers Ferrigno and Libertore be exonerated on Benny Warr’s
allegation that the officers used excessive force while effectuating his arrest.53
231. According to the CRB, its main focus “is to determine the fairness,
thoroughness and timeliness of the police complaint investigation as well as any possible
53 See August 25, 2015 Transcript at 30:12–16.
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deficiencies.”54 Moreover, the CRB prides itself in purportedly “providing independent, neutral
fair representation for all involved parties.”55
232.
However, in the CRB review of Benny Warr’s excessive force complaint,
the CRB panelists accused the RPD of attempting to inappropriately influence their
investigation. Specifically, the CRB panelists objected to the fact that Sergeant Andrew
McPherson, the RPD’s Defensive Tactics Coordinator, made a presentation to the CRB
explaining the purported reasons the PSS exonerated Officers Ferrigno and Libertore, despite the
overwhelming video and testimonial evidence showing they used excessive force in effectuating
the arrest of Benny Warr.
56
233. RPD Chief of Police James Sheppard reviewed the PSS and CRB
investigative findings, and the witness cell phone and RPD Blue Light Camera videos of the
incident.57
234. Despite irrefutable evidence that Officers Ferrigno and Libertore used
excessive force in effectuating the arrest of Benny Warr, RPD Chief James Sheppard exonerated
both officers on Mr. Warr’s excessive force allegations, stated that their use of force was
reasonable under the circumstances.
235. The proliferation of video evidence capturing police misconduct has lead
to an increase in the number and percentage of substantiated complaints of police misconduct in
municipalities across the county. For example, in New York City, the number of complaints
54 Police Community Relations Program: Civilian Review Board 2015 Annual Report at 15, available at
http://www.cityofrochester.gov/WorkArea/DownloadAsset.aspx?id=8589964676 (last visited Apr. 17, 2016)
(Hereinafter “2015 CRB Report”). 2015 CRB Report incorporated by reference herein.55 Id . at 3.56 See August 25, 2015 Transcript at 41:4–10.57 See Cell phone video taken by Ms. Tashay Young, a/k/a Shakur Mohammed, originally posted to YouTube on
May 4, 2013, and later edited and reposted on June 24, 2013, Corrected Higher Resolution Video of Benny Warr
Being Attacked , https://www.youtube.com/watch?v=7xifmR0C3Mk&nohtml5=False (last visited Apr. 10, 2016).
Video incorporated by reference herein.
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substantiated by the NYPD’s Civilian Complaint Review Board (“CCRB”) increased
approximately seventy-percent (70%) from 2014 to 2015.58 In fact, forty-three percent (43%) of
cases where video evidence was available were substantiated by the CCRB in 2015, as opposed
to thirty-percent (30%) of cases substantiated overall.59
236. Nevertheless, Defendant CITY and the RPD persist in their failure to hold
RPD officers accountable for using force without justification, even when presented with
overwhelming and irrefutable evidence of misconduct.
237. Moreover, the Defendant CITY and RPD continue to resist calls for
disclosure of more detailed information regarding the process by which civilian complaints are
reviewed.
238. The Defendant CITY and the RPD continue to resist calls for RPD officers
to accurately document use-of-force incidents, which prevents compilation of accurate data
regarding (1) general use-of-force trends among RPD Officers, and (2) particular RPD officers
that repeatedly use force without justification.
239.
The Defendant CITY and the RPD continue to resist calls for disclosure of
accurate statistics concerning the total number of police misconduct complaints brought against
RPD officers, the percentage of police misconduct complaints actually investigated by the RPD
(through PSS or otherwise), and the percentage of police misconduct complaints alleging
unjustified use of force actually investigated by the CRB.
240. The Defendant CITY and the RPD continue to resist calls for disclosure of
accurate statistics concerning the correlation between PSS findings and recommendations of
58 John Annese and Graham Rayman, Review Board substantiates 30% of civilian complaints against NYPD officers
in December with video evidence, N.Y. Daily News (Jan. 15, 2016), http://www.nydailynews.com/new-york/30-
civilian-complaints-nypd-substantiated-article-1.2497121 (last visited Apr. 10, 2016). Article incorporated herein byreference.59 Id .
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materials related the investigation of police misconduct complaints, the Defendant CITY,
through counsel, contradicted it’s prior representation and claimed the CRB reviewed the PSS
findings and exonerated Officers Ferrigno and Libertore of all charges.63
245. At the same August 25, 2015 hearing, evidence was presented showing the
RPD attempted to inappropriately influence the CRB’s investigation of Benny Warr’s use-of-
force complaint. Specifically, RPD Sergeant Andrew McPherson, the RPD’s Defensive Tactics
Coordinator, made a presentation to the CRB explaining the purported reasons the PSS
exonerated Officers Ferrigno and Libertore. 64
246.
Moreover, in its 2015 Annual Report, the PSS apparently contradicts itself
regarding the number of citizen complaints it received in 2015. On