Lipford Suit

8/18/2019 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

Case 6:16-cv-06266 Document 1 Filed 04/22/16 Page 1 of 63


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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 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



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



NINTH CLAIM FOR RELIEF

NEGLIGENCE UNDER NEW YORK STATE LAW

157.

Plaintiff re-alleges each and every allegation contained in the above


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.




TENTH CLAIM FOR RELIEF

MALICIOUS ABUSE OF PROCESS UNDER NEW YORK STATE LAW



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



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



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.


and harmed. Accordingly, Plaintiff demand judgment against Defendants in a sum of money to


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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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


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


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


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


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


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


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


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


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


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

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