Lipford Suit

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

WESTERN DISTIRCT OF NEW YORK
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DELMAR LIPFORD,
INDEX NO.:
Plaintiffs,
-against-
THE CITY OF ROCHESTER, a municipal entity, POLICE

OFFICER ALEXANDER BALDAUF, ID # 2182 POLICE
OFFICER RICKEY J. HARRIS JR., ID # 2191,
SERGEANT JOSH LEWIS, SERGEANT HENRY
RIVERA, ID # 1024, LIEUTENANT SA, ID # 1147, and
POLICE OFFICERS JOHN DOES 1-10 (names and
number of whom are unknown at present), and other
unidentified members of the Rochester Police Department,
ECF CASE
COMPLAINT
[JURY TRIAL DEMANDED]
Defendants.
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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 timesall for violations
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 mothers 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 RPDs
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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 RPDs 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 officerssuch as Defendants BALDAUF and HARRISto
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
attorneys 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 Courts 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 Plaintiffs 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 BALDAUFs 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 dont 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 dont shoot him he didnt 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 RPDs 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 BALDAUFs 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 BALDAUFS 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
BALDAUFs use of excessive force against Plaintiff.
88. Upon information and belief, Defendant BALDAUFs use of force against
Plaintiff was caused by the Defendant CITY and RPDs 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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Plaintiffs 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 Plaintiffs behalf so as to prevent the
violation of Plaintiffs 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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103.
Defendant THE CITY and the RPD are responsible for the actions of their
employees under the doctrine of Monell v. City of New York Department of Social Services, 436
U.S. 658 (1978).
104.
As a result of Defendants impermissible conduct, Plaintiff was injured
105.
As a result, Plaintiff seeks compensation in an amount to be determined at
and harmed.
trial.
SECOND CLAIM FOR RELIEF

VIOLATION OF PLAINTIFFS FOURTH AMENDMENT RIGHTS
UNDER 42 U.S.C. 1983
ARISING FROM WARRANTLESS ARREST WITHOUT PROBABLE
CAUSE
106.
Plaintiff re-alleges each and every allegation contained in the above
paragraphs with the same force and effect as if fully set forth herein.
107.
One or more of the Defendant POLICE OFFICERS, including but not
limited to Defendant BALDAUF and Defendant HARRIS, handcuffed and arrested Plaintiff.
108.
This arrest was made in the absence of a warrant for the arrest.
109.
This arrest was made in the absence of probable cause for this arrest.
110.
The Defendant POLICE OFFICERS arrested Plaintiff without having
exigent circumstances for doing so.

111.
There was no other authority for the arrest of Plaintiff.
112.
The Plaintiff was conscious of this arrest.
113.
The Plaintiff did not consent to this arrest.
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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.
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 OFFICERSin performance of their duties
with powers and authorities designated upon them by the Defendant CITYintentionally
confined Plaintiff.
118.
Plaintiff was at all times consciously aware of his confinement by the
Defendant POLICE OFFICERS.

119.
At no point throughout Plaintiffs unlawful detention and confinement by
the Defendant POLICE OFFICERS did Plaintiff consent to said confinement.

120.
At no point throughout Plaintiffs unlawful detention and confinement by
the Defendant POLICE OFFICERS were the actions of the Defendant POLICE OFFICERS
otherwise privileged.
121.
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
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
back.
not having probable cause for his arrest.

127.
The handcuffs were too tight, and were left on for unreasonable periods of
128.
By the aforedescribed conduct, the Defendant POLICE OFFICERS, their
time.
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.

135.
136.
By the aforedescribed conduct, the Defendant POLICE OFFICERS, their
time.
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.
The Defendant CITY, as the employer of defendants, is responsible for their
wrongdoing under the doctrine of respondeat superior.
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SIXTH CLAIM FOR RELIEF

VIOLATION OF PLAINTIFFS FOURTH AMENDEMNT RIGHTS
UNDER 42 U.S.C. 1983 ARISING FROM DEFENDANTS USE OF
EXCESSIVE FORCE
138.
139.
The Defendant POLICE OFFICERS shoved Plaintiff multiple times in the
chest and back.

140.
The Defendant POLICE OFFICERS punched Plaintiff in the face.
141.

142.
143.
At no point during the incidents described herein did the circumstances
time.
necessitate or support the above applications of force utilized by the Defendant POLICE
OFFICERS against Plaintiff.
144.
As a result, Plaintiff was damaged, harmed and injured, and seeks
SEVENTH CLAIM FOR RELIEF

VIOLATION OF PLAINTIFFS CONSTITUTIONAL RIGHTS
ARISING FROM DEFENDANTS FAILURE TO INTERVENE
145.
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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 Plaintiffs 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
Plaintiffs behalf to despite having had realistic opportunities to do so.

148.
The individual Defendant POLICE OFFICERS failed to intervene on
Plaintiffs 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, Plaintiffs constitutional rights were violated.

150.
As a result of the aforementioned conduct of the Defendant POLICE
OFFICERS, Plaintiffs constitutional rights were violated.

151.
As a result, Plaintiff was damaged, injured and harmed, and seeks
EIGHTH CLAIM FOR RELIEF

DEPRIVATION OF PLAINTIFFS RIGHTS AS GUARANTEED BY THE
NEW YORK STATE CONSTITUTION
152.
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.
NINTH CLAIM FOR RELIEF

NEGLIGENCE UNDER NEW YORK STATE LAW
157.
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
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-
- 23 -
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.
TENTH CLAIM FOR RELIEF

MALICIOUS ABUSE OF PROCESS UNDER NEW YORK STATE LAW
162.
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 Plaintiffs rights.
165.
The Defendant POLICE OFFICERS acted with intent to do harm to
Plaintiff, with actual malice, without excuse or justification.

166.
cause/5205185/ (last visited Apr. 7, 2016). Article and videos embedded within article incorporated by reference
herein.
- 24 -
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.
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.
and harmed. Accordingly, Plaintiff demand judgment against Defendants in a sum of money to
TWELFTH CLAIM FOR RELIEF

MUNICIPAL LIABILITY UNDER MONELL
ARISING FROM UNCONSTITUTIONAL MUNICIPAL POLICES
RELATING TO THE RPDS CUSTOM, PRACTICE, AND POLICY OF
UNLAWFULLY EMPLOYING EXCESSIVE FORCE IN THE COURSE OF
EFFECTUATING ARRESTS
- 25 -
173.
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 arrestees 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
- 26 -
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
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
- 27 -
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 HAD
PRIOR NOTICE OF RPD OFFICERS 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.
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-
- 28 -
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.
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.
- 29 -
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 2428, 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). Complaint
incorporated by reference herein.
8
See Complaint at 16, id.
- 30 -
CITY or the RPD following incident underlying Loria v. City of Rochester, et al., 09-cv6095(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).
10
See id.
- 31 -
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
Andinos 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.
- 32 -
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. Goods 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 Masics
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, and
is 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 by
reference herein.
17
Id.
- 33 -
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.
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.
See Gary Craig, Emily Good files notice to sue city, DEMOCRAT & CHRONICLE (Aug 10, 2011) (article on file with
Plaintiffs 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
19
- 34 -
210.
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 RPDs 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
22
Id.
23
See Complaint at 15, id.
- 35 -
Rochester et al., Plaintiff alleged that she called 911 to report that shed 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 Ferrignos 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, Im going to teach you to respect authority.27 This case was pending as of the
date this complaint was filed.28
24
Id. at 1922.
Id. at 2040.
26
See Docket No. 27, id. Docket report incorporated by reference herein.
27
See Complaint at 3036, 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.
25
- 36 -
215.
Upon information and belief, Officer Ferrigno was never reprimanded,
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 RPDs
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 RPDs 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).
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-bennywarr-/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 1st of Benny Warr
attack, https://www.youtube.com/watch?v=47vo2WVcWY0 (last visited Apr. 10, 2016). Video incorporated by
reference herein.
- 37 -
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 210216, supra, and the Defendant CITY and RPDs 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 DEPARTMENTS

POLICIES AND PROCEDURES RELATED TO INVESTIGATING USE OF FORCE
INCIDENTS ARE CONSTITUTIONALLY DEFICIENT AND DEMONSTRATE THE CITYS
DELIBERATE 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.
- 38 -
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 RPDs 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 RPDs 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 CITYs constitutionally deficient process for
investigating and reviewing use-of-force incidents;
- 39 -
h. the Defendant CITYs failure to track use-of-force incidents;

i. the Defendant CITY and RPDs 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 RPDs 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 its
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 reference
herein.
35
Id.
36
Id.
37
Id.
38
Id.
- 40 -
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 plaintiffs
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 201442but 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 CITYs 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 theres some special facts and
circumstances, and that based on the deposition of former RPD Chief James Sheppard and
39
Id.
Id.
41
See Transcript of Proceedings on Motion to Quash Subpoena on Center for Dispute Settlement at 27:1421, 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 29:415, 30:78.
43
See id. 27:1421; see also Burkwit Affidavit at 2223, and Ex. C to Burkwit Affidavit.
44
Ex. C to Burkwit Affidavit; August 25, 2015 Transcript at 29:415.
45
City of Rochester, ROCHESTER POLICE DEPARTMENT CITIZEN COMPLAINT PROCESS,
http://www.cityofrochester.gov/rpdcomplaintprocess/ (last visited Apr. 10, 2016).
40
- 41 -
counsels 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 RPDs 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 wheelchairbound 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 RPDs
responded to an order to move by telling officers that he was just waiting for a bus.50 Mr.
Warrs 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 Warrs head while Mr. Warr was lying face down on
46
See August 25, 2015 Transcript at 30:921.

reference herein.
48
49
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-bennywarr-/3895715/ (last visited Apr. 10, 2016). Article incorporated by reference herein.
51
52
reference herein.
47
- 42 -
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. Warrs 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 Ferrignos
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 Warrs
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
- 43 -
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 Warrs 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 RPDs 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. Warrs 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
57
- 44 -
substantiated by the NYPDs 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/30civilian-complaints-nypd-substantiated-article-1.2497121 (last visited Apr. 10, 2016). Article incorporated herein by
reference.
59
Id.
- 45 -
force allegations, CRB recommendations with regard to the PSS findings and recommendations,
and the RPD Chiefs ultimate decision with regard to PSS and CRBs findings and
recommendations. Upon information and belief, compilation of accurate statistics regarding such
findings and recommendations is currently impossible because of the Defendant CITY and
RPDs failure to document use-of-force incidents and its inadequate record keeping system with
regard to the investigation of complaints alleging RPD officers used force without justification.
241.
For example, the CRB apparently does not make any written record of
their findings and recommendations regarding its review of PSS investigative files. Instead, the
chair of CRB panel conveys the panels recommendation to the RPD by leaving a voicemail with
the PSS.60 The PSS then transcribes the CRB voicemail of its findings and recommendations and
submits them through the channels to the Chief of Police.61
242.
The purported system of conveying CRB findings is incredible.
243.
The Defendant CITY and RPDs purported police misconduct record-
keeping system is deficient, as it admittedly fails to create any written record of the CRBs
findings.
244.
The failure to create records of police misconduct investigations prevents
the Defendant CITY and the RPD from accurately reviewing use-of-force complaints, causes
complaints to be lost and go unreviewed, and suggests that the CRB is a sham. For example, in
the case of Benny Warr, the Defendant CITY, through counsel, originally represented to the
Court in a sworn affidavit that, there was no Civilian Review Board review of this matter.62
Thereafter, at a hearing on August 25, 2015 on plaintiffs motion to compel discovery of
60

See id. at 14:1416.
62
See Affidavit of Spencer L. Ash In Response to Plaintiffs Motion to Compel and Motion for Protective Order, at
10, 18, Warr, et al. v. City of Rochester, et al., 13-cv-6508-DLG-MWP (W.D.N.Y. Feb. 18, 2015) (hereinafter,
Ash Affidavit). Ash Affidavit incorporated herein by reference.
61
- 46 -
materials related the investigation of police misconduct complaints, the Defendant CITY,
through counsel, contradicted its 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 CRBs investigation of Benny Warrs use-offorce complaint. Specifically, RPD Sergeant Andrew McPherson, the RPDs 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 page 4, PSS claims that the
625,010 responses by Departmental units in 2015 resulted in the initiation of 33 citizen
complaints of misconduct.65 However, on page 5, the report explains that when a complaint
does not meet the criteria of a formal investigation, PSS Investigators mark such complaints as
Administrative Inquiries, and no formal investigation of the complaint is conducted by PSS.66
In 2015, PSS marked 226 citizen complaints as Administrative Inquiries for which no formal
investigation was conducted.67
247.
Officials and employees of the Defendant CITY have previously accused
the RPD of reporting inaccurate and misleading statistics.68
63

65
Rochester Police Department Professional Standards Section 2015 Annual Report at 4, available at
http://www.cityofrochester.gov/WorkArea/DownloadAsset.aspx?id=8589968197 (Last visited Apr. 17, 2016)
(Hereinafter PSS 2015 Report). PSS 2015 Report incorporated by reference herein.
66
Id. at 5.
67
Id.
68
See John Hand, Sheppard sustains focus on outreach, DEMOCRAT & CHRONICLE (Jan. 3, 2013). Article on file
with Plaintiffs attorney, and incorporated by reference herein.
64
- 47 -
248.
In summary, the Defendant CITY and RPDs process for reviewing use-
of-force incidents is inadequate in design and practice, and fails to hold officers accountable. In
fact, there is substantial evidence that in practice, the Defendant CITY and RPDs use-of-force
review process is primarily used to justify exonerating RPD Officers accused of using force
249.
The fact that the CRB does not create a written record of their review of
the PSS Investigative Findings and recommendations, but instead purportedly reports its findings
by leaving a voicemail with PSS, suggests that the two agencies conspire to exonerate RPD
Officers accused of using force without justification.
250.
Recognizing that the police cannot police themselves, the Defendant CITY
purportedly established the CRB to incorporate civilian oversight of the RPDs internal
investigation of the most serious police misconduct allegationsincluding the use of force
251.
However, the Defendant CITY and the RPD have persistently taken
actions to prevent the CRB from independently and objectively reviewing PSS investigations.
252.
The Defendant CITY and the RPDs police, practice and custom of
condoning police use of force without justification has caused countless individuals to be
victimized by RPD Officers repeated use force without justification, including the Plaintiff
DELMAR LIPFORD.
THESE UNCONSTITUTIONAL POLICIES AND PRACTICES
RESULTED IN PLAINTIFFS INJURY
253.
The foregoing customs, policies, usages, practices, procedures and rules of
the Defendant CITY and the RPD constituted deliberate indifference to the safety, well-being
and constitutional rights of the Plaintiff.
- 48 -
254.
Approximately four months prior to the incident giving rise to the instant
action, Defendant BALDAUF and Defendant HARRIS were named as defendants in Ivery v.
Baldauf, et al., 69 a lawsuit alleging that they used objectively unreasonable and excessive
amounts of force against Dwayne Ivery on August 17, 201370approximately one year and eight
months prior to the incident giving rise to the instant action.
255.
In Ivery, the plaintiff alleges that on August 17, 2013, Defendant
BALDAUF punched the Plaintiff Dwayne Ivery in the head numerous times before Defendant
Baldauf landed Plaintiff Dwayne Ivery on the ground, when he continued punching Plaintiff in
the head, face and over many areas of his body, and stomp[ing] on Plaintiffs head with his
foot.71
256.
In Ivery, Defendant HARRIS is accused of [standing] quietly and
watch[ing] as Defendant Baldauf continued beating Plaintiff Dwayne Ivery who lost
consciousness.72
257.
In Ivery, the plaintiff has disclosed video recordings to the court and to the
media that corroborate plaintiffs allegations. Specifically, the video recording shows Defendant
BALDAUF brutally beating Dwayne Ivery, and Defendant HARRIS standing idly several feet
away by and failing to intervene to prevent and/or stop Defendant BALDAUF from brutally
beating Dwayne Ivery.73
258.
Upon information and belief, Defendant BALDAUF was never
69
See Complaint, IVERY v. BALDAUF, et al., Docket # 14-CV-6041-DGL-JWF (W.D.N.Y. 2014). Complaint
70
See id. at 28-29.
71
See Complaint, 2829, id.
72
See Complaint, 29, id.
73
See 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-withoutcause/5205185/ (last visited Apr. 7, 2016). Article incorporated by reference herein.
- 49 -
CITY or the RPD following the August 17, 2013 incident in which Defendant BALDAUF is
captured on video brutally beating Dwayne Ivery, or the filing of the lawsuit known as Ivery v.
Baldauf et al. on June 27, 2014.
259.
Upon information and belief, Defendant HARRIS was never reprimanded,
RPD following the August 17, 2013 incident in which Defendant HARRIS is captured on video
idly standing by and failing to intervene to stop and/or prevent Defendant BALDAUF from
brutally beating Dwayne Ivery, or the filing of the lawsuit known as Ivery v. Baldauf et al. on
June 27, 2014.
260.
Upon information and belief, the Defendant CITYs failure to investigate
the unjustified force used against Dwayne Ivery or to discipline Defendants BALDAUF and
HARRIS was a result of the Defendant CITYs pattern of inaction and persistent failure to
discipline RPD Officers who use force without justification.
261.
Upon information and belief, the Defendant CITYs failure to investigate
the unjustified force used against Dwayne Ivery and its failure to discipline Defendant
BALDAUF constituted a tacit approval of Defendant BALDAUFs use of force without
justification.
262.
Upon information and belief, on April 20, 2015, when Defendant
BALDAUF repeatedly shoved Plaintiff MR. LIPFORD, punched him in the face, and threatened
to shoot Plaintiff with his TASER, he was acting pursuant to the custom, practice, and/or policy
of the Defendant CITY and the RPD which condones RPD officers use of force without
justification.
- 50 -
263.
Upon information and belief, the RPDs practice of tolerating and
condoning police misconduct by its officers, including but not limited to Defendant BALDAUF,
Defendant HARRIS, Defendant SERGEANT LEWIS, and Defendant POLICE OFFICERS
John Does 1-10, directly and proximately resulted in Plaintiff being assaulted, battered,
subjected to excessive force, and then falsely arrested and charged with crimes he did not
commit in an attempt to justify Defendants unlawful actions.
264.
suffered violations of his civil rights, emotional distress, anguish, anxiety, fear, humiliation, and
physical injury.
265.

266.
Plaintiff also demands that the Defendant CITY and the RPD be ordered
to implement a new system for investigating use-of-force incidents and disciplining officers that
have used force without justification. Because the Defendant CITY and RPD have persistently
resisted calls for such reforms, the Court must impose an extraordinary remedy that includes
independent oversightsuch as a Federal Monitor.
267.
Because accountability begins with access to reliable data, any remedy
must include mechanisms to ensure the accurate tracking of use-of-force incidents, lawsuits,
misconduct complaints and internal probes. Compilation of this data is the only way to find
patters and effectively (1) root out bad officers, (2) amend or change RPD policy, and (3)
identify issues that need to be addressed via additional training.74
74
See, e.g., Long, Colleen, NYPD tracking officer data on lawsuits, complaints, AP (Jul. 15, 2011),
http://www.policeone.com/officer-misconduct-internal-affairs/articles/8656321-NYPDtracking-officer-data-onlawsuits-complaints. Article incorporated by reference herein.
- 51 -
THIRTEENTH CLAIM FOR RELIEF

MUNICIPAL LIABILITY UNDER MONELL
ARISING FROM UNCONSTITUTIONAL MUNICIPAL POLICES
RELATING TO THE RPDS CUSTOM, PRACTICE, AND POLICY OF
UNLAWFULLY CHARGING INNOCENT PEOPLE WITH COVER
CHARGES TO PUNISH CONTEMPT OF COP
268.
269.
Upon information and belief, police officers in the City of Rochester make
arrests in the absence of the commission of any crime by the person arrested, motivated by a
desire to punish the arrestee for the arrestees perceived failure to display the degree of deference
or subservience demanded by the arresting officers. 75
270.
Such arrests are frequently referred to as contempt of cop arrests.
271.
In order to conceal the illegality of these arrests, the victim of the unlawful
arrest is charged with a cover charge, usually a low-level crime which does not require a
complaint, and whose elements can be established, for the purposes of a criminal complaint, by
the officers own perjured affidavit or testimony.
272.
RPD officers have a pattern and practice of charging one or more of a
trinity of offenses as their favored cover charges: disorderly conduct, resisting arrest, and
obstruction of governmental administration.
273.
However, other charges that require no complaint, such as harassment or
trespass, are also used to cover false arrests.

75
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); Morgan Whitaker,
Charges dropped against teens arrested at bus stop, MSNBC (Dec. 3, 2012), (last visited June 14, 2014). Articles
- 52 -
274.
The RPD has never undertaken any internal study of contempt of cop
arrests or cover charges, and statistics on these practices are not available. However, there is
extensive evidence of a widespread practice of false cover charges.
275.
Moreover, former the Defendant CITY, through former RPD Chief James
Sheppard, has admitted that the Defendant CITY and the RPD maintain an unlawful policy of
making contempt of cop arrests and charging the victim of the unlawful arrest with cover
charges. Specifically, Chief Sheppard admitted that the RPD has historically and continues to
maintain a policy whereby RPD Officers are instructed to issue dispersal orders to individuals
lawfully present on public sidewalks, and when the individuals fail to display the degree of
deference or subservience demanded by the arresting officer(s), RPD Officers are instructed to
arrest the individuals despite the absence of the commission of any crime and to falsely charge
them with cover charges such as disorderly conduct, obstruction of governmental
administration and harassment.
276.
A case recently settled by the Defendant CITY, Redd v. City, et al., 15-
CV-6049-DGL-JWF (W.D.N.Y. 2014), exemplifies a quintessential contempt-of-cop/cover

charge false arrest. In Redd, on November 27, 2013, RPD Officer Eliud Rodriguez arrested the
16-year-old plaintiff and two of his the Edison Tech Varsity Basketball teammates76 as they
waited at the bus stop in downtown Rochester, NY, which was designated by City of Rochester
officials and employees as the bus stop for all Rochester City School District sports teams.
Officer Rodriguez arrested Mr. Redd and his two teammates in retaliation for their perceived
failure to adequately comply with his unlawful order to move along when the three studentathletes attempted to explain they were waiting for their school bus. Officer Rodriguez and other
76
Upon information and belief, the two co-arrestees of the plaintiff in Redd v. City, et al., 15-CV-6049-DGL-JWF
(W.D.N.Y. 2014) reached settlements in the amount of $8,000 (Weathers) and $10,000 (Carelock) with Defendant
CITY prior to filing civil rights lawsuits in court.
- 53 -
RPD officers lied in official police paperwork and charged Mr. Redd and his two teammates with
Disorderly Conduct, despite knowing they lacked probable cause to do so. Approximately ten
(10) days after the false arrest, the Monroe County District Attorney dropped all of the false
criminal charges levied against Mr. Redd and his two teammates.
277.
As detailed in the complaint in Redd v. City, et al., in the Summer of 2014,
the United States Department of Justice, including the Federal Bureau of Investigation (FBI) and
the United States Attorneys Office for the Western District of New York, conducted an
investigation to determine whether federal criminal charges should be brought against RPD
Officer Eliud Rodriguez for his unlawful conduct.
278.
Another contempt of cop arrest that received national media attention
occurred in May 2011, when RPD Officer Mario Cowboy Masic arrested Emily Good. As
reported by CNN, after RPD Officers pulled over an African American motorist and began
searching his vehicle in front of Ms. Goods 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. When Ms. Good refused Officer Masics unlawful order to stop filming, Officer
Masic falsely arrested Ms. Good and charged her with Obstruction of Governmental
Administration. The Monroe County District Attorney eventually dismissed all charges against
Ms. Good, stating that, "Based upon the evidence, we could not make out the elements of the
crime charged. 77 Upon information and belief, Ms. Good reached a settlement with the
Defendant CITY prior to filing a civil rights lawsuit in court.
77
See Solomon, Jessee, Charges dismissed against woman who videotaped police encounter, CNN (June 27, 2011).
Article
incorporated
by
reference
herein
and
available
online
at:
http://www.cnn.com/2011/CRIME/06/27/new.york.police.video/ (last visited Dec. 7, 2014). Article incorporated by
reference herein.
- 54 -
279.
A third high profile contempt of cop arrest occurred on May 1, 2013,
when RPD Officers Ferrigno and Libertore arrested Benny Warr, a 52-year-old wheelchair
bound man, while he was waiting for a RTS bus at the intersection of Jefferson and Bartlett
Streets. 78 As reported by the Democrat & Chronicle, Mr. Warr testified to the RPDs
responded to an order to move by telling officers that he was just waiting for a bus. The incident
between Mr. Warr and the Rochester police officers was caught on video by several bystanders,
and by the RPDs blue light cameras. The Rochester police officers charged Mr. Warr with
Disorderly Conduct and Resisting Arrest. Further, [s]ince reporting his version of the events,
[Mr. Warr] has heard nothing from the police or the Civilian Review Board, the body that is
supposed to review citizens' complaints of alleged police misconduct.79
280.
Further, more detailed information regarding the repeated acts of
misconduct of RPD Officers Eliud Rodriguez, Mario Cowboy Masic, Joseph Ferrigno and
Anthony Libertore are outlined in the Twelfth Cause of Action, supra.
281.
Upon information and belief, Defendant CITY and the RPD have refused
calls for disclosure of statistics concerning minor offenses such as the cover charge crimes.
282.
Upon information and belief, the contempt of cop and cover charge
charges levied most regularly by Rochester Police Officers are disorderly conduct, resisting
arrest, obstruction of governmental administration, trespass and harassment.
78
79
Bryant, Erica, Whatever Happened to Benny Warr?, DEMOCRAT & CHRONICLE (Dec. 7, 2013). Article
incorporated
by
reference
herein
and
available
online
at:
http://www.democratandchronicle.com/story/news/local/2013/12/06/erica-bryant-what-ever-happened-to-bennywarr-/3895715/ (last visited Dec. 8, 2014). Article incorporated by reference herein.
- 55 -
283.
Upon information and belief, contempt of cop and cover charge
charges such as disorderly conduct, resisting arrest, obstruction of governmental administration,

trespass and harassment are relatively easy for police to levy in the absence of actual probable
cause because they may arise out of nearly any police-civilian interaction.
284.
Upon information and belief, contempt of cop and cover charge

trespass 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.
285.
Upon information and belief, Defendant CITY has been, and continues to
be, aware of the prevalence of the problem of officers of the RPD making baseless contempt of
cop arrests, and bringing false cover charges against the arrestees, but has failed to take action
to remedy the problem.
286.
Upon information and belief, to date the Defendant CITY has not
implemented any particular training, oversight measures or policies designed or intended to

curtail the improper use by RPD Officers of so-called contempt of cop and cover charge
trespass and harassment.
287.
Upon information and belief, and despite due and repeated notice that
RPD Officers have an ongoing custom or practice of charging individuals with crimes and
violations such as disorderly conduct, resisting arrest, obstruction of governmental
administration, trespass and harassment for personal vindication and/or as pretexts to justify use
of force, to date Defendant CITY has not implemented any particular training, oversight
- 56 -
measures or policies designed or intended to curtail the improper use by RPD Officers of socalled "contempt of cop" and "cover charge" charges such as disorderly conduct, resisting arrest,
obstruction of governmental administration, trespass and harassment.
288.
Upon information and belief, and despite due and repeated notice that
RPD Officers have an ongoing custom or practice of charging individuals with crimes and
violations such as disorderly conduct, resisting arrest, obstruction of governmental
administration, trespass and harassment as pretexts to justify punitive false arrests undertaken in
the absence of probable cause, to date Defendant CITY has not implemented any particular
training, oversight measures or policies designed or intended to curtail the improper use by RPD
Officers of so-called "contempt of cop" and "cover charge" charges such as disorderly conduct,
resisting arrest, obstruction of governmental administration, trespass and harassment.
289.
Upon information and belief, Defendant "John Doe" POLICE OFFICERS,
Defendant BALDAUF, Defendant HARRIS, and Defendant LEWIS have charged and continue
to charge individuals with crimes and violations such as disorderly conduct, resisting arrest,
obstruction of governmental administration, trespass and harassment, or fabricating a crime or
violation as pretexts to justify punitive false arrests undertaken in the absence of probable cause,
to date Defendant CITY has not implemented any particular oversight measures or policies
designed or intended to curtail the improper use by RPD Officers of so-called "contempt of cop"
and "cover charge" charges such as disorderly conduct, resisting arrest, obstruction of
governmental administration, trespass and harassment.
290.
Upon information and belief, Defendant "John Doe" POLICE OFFICERS,
Defendant LEWIS, Defendant RIVERA, Defendant SA, and other RPD supervisors and
officials have approved and continue to approve the practice of RPD Officers charging
- 57 -
individuals with crimes and violations such as disorderly conduct, resisting arrest, obstruction of
governmental administration, trespass and harassment, or fabricating a crime or violation, as
pretexts to justify punitive false arrests undertaken in the absence of probable cause. Despite due
and repeated notice, to date Defendant CITY has not implemented any particular oversight
measures or policies designed or intended to curtail the improper approval by high-ranking RPD
Officers of the use by RPD Officers of so-called "contempt of cop" and "cover charge" charges
such as disorderly conduct, resisting arrest, obstruction of governmental administration, trespass
and harassment.
THESE UNCONSTITUTIONAL POLICIES AND PRACTICES

RESULTED IN PLAINTIFFS INJURY
291.
Upon information and belief, Defendant BALDAUF, Defendant HARRIS,
Defendant LEWIS, and Defendant POLICE OFFICERS John Does 1-10 were acting pursuant
to the custom, practice, and/or policy of subjecting individuals to contempt of cop arrests when
they arrested and detained Plaintiff.
292.
Upon information and belief, the RPDs practice of tolerating and
condoning police misconduct by its officers, including but not limited to Defendant BALDAUF,
Defendant HARRIS, Defendant LEWIS, Defendant RIVERA, Defendant SA, and Defendant
POLICE OFFICERS John Does 1-10, directly and proximately resulted in Plaintiff being
subjected to unlawful arrest and excessive force by Defendant BALDAUF, Defendant HARRIS,
Defendant LEWIS, and Defendant POLICE OFFICERS John Does 1-10.
293.
Upon information and belief, the RPDs practice of unlawfully charging
innocent people with cover charges to punish contempt of cop directly and proximately
resulted in Plaintiff being subjected to an unlawful arrest and excessive force by Defendant
- 58 -
BALDAUF, Defendant HARRIS, Defendant LEWIS, and Defendant POLICE OFFICERS John
Does 1-10.
294.
suffered violations of his civil rights, emotional distress, anguish, anxiety, fear, humiliation, and
physical injury.
295.
FOURTEENTH CLAIM FOR RELIEF

EQUAL PROTECTION UNDER 42 U.S.C. 1983
296.
297.
At all times described herein, Plaintiff was possessed of the right to equal
protection under the laws, as guaranteed under the 14th Amendment to the United States
Constitution.
298.
The Defendant POLICE OFFICERS arrested and incarcerated Plaintiff in
the absence of any evidence of criminal wrongdoing, notwithstanding their knowledge that said
arrest and incarceration would jeopardize Plaintiff liberty, well-being, safety and constitutional
rights.
299.
The Defendant POLICE OFFICERS used excessive force against Plaintiff
in the effectuation of his arrest in the absence of any objectively reasonable factual basis for the
use of such force, notwithstanding their knowledge that said force would jeopardize Plaintiffs
liberty, well-being, safety and constitutional rights.
- 59 -
300.
The acts complained of were carried out by the Defendants in their
capacities as police officers and officials, with all the actual and/or apparent authority attendant
thereto.
301.
The acts complained of were carried out by the aforementioned
Defendants in their capacities as police officers and officials pursuant to the customs, policies,
usages, practices, procedures, and rules of the Defendant CITY and the RPD, all under the
supervision of ranking officers of said department.
302.
Plaintiff was falsely accused of crimes and violations and was taken into
Police custody and detained against his will.

303.
That the actions of the Defendants heretofore described, constituted
unlawful detention, imprisonment, search, excessive force, and malicious abuse of process, and
were designed to and did cause physical harm, mental harm, pain, and suffering both in violation
of Plaintiffs constitutional rights as guaranteed under 42 U.S.C. 1983 and the United States
Constitution, Fourth and Fourteenth Amendments and the Constitution of the State of New York
and in direct retaliation for Plaintiffs exercise of his civil and constitutional rights of free
expressive association as guaranteed by the Fourteenth Amendments to the United States
Constitution as well as the Constitution of the State of New York.
304.
On November 19, 2014, the Democrat & Chronicle published an article
citing a USA Today study of FBI arrest data for the years 2011 and 2012, which showed that the
Rochester Police Department arrest rate of African-American residents (299.5 per 1,000) is
- 60 -
approximately three times greater than the arrest rate of non-African-American residents (112.2
per 1,000).80
305.
The particular arrest and excessive force used against Plaintiff is believed
to have been motivated in whole or in part by a custom or practice of racism of victimization, not
of hate, whereby minority individuals are charged with crimes and violations such as resisting
arrest, disorderly conduct, obstruction of governmental administration, and harassment in the
absence of probable cause to arrest, due to perceived ease of prosecution of minority individuals.
306.
Officials and/or employees of the Defendant CITY have publicly
expressed concern that the Defendant CITY has a pattern and practice of unlawfully targeting
and abusing young black men based on their race.81
307.
The particular arrest of Plaintiff is believed to have been motivated in
whole or in part by a custom or practice of racism of victimization, not of hate, whereby minority
individuals are subjected to excessive force in the effectuation of their arrests and charged with
crimes and violations such as resisting arrest, disorderly conduct, obstruction of governmental
administration, and harassment in the absence of probable cause to arrest, due to perceived ease
of prosecution of minority individuals, because the Defendants informed Plaintiff that he was
being arrested after it was already established that Plaintiff was not carrying any weapons or
illegal substances, and did not have any outstanding warrants against him.
308.
The Defendants, through their actions, carried out a discriminatory
application of such laws, driven by a discriminatory motivation of what might otherwise be

facially neutral statutes due to a perceived ease of prosecution.
80
McDermott M., Meghan, Black arrest rate high in Rochester area, DEMOCRAT & CHRONICLE, (Nov. 19, 2014).
Article
incorporated
herein
by
reference
and
available
online
at:
http://www.democratandchronicle.com/story/news/2014/11/18/racial-arrest-disparity-gates-rochester/19243017/.
81
See Morgan Whitaker, Charges dropped against teens arrested at bus stop, MSNBC (Dec. 3, 2012), (last visited
June 14, 2014). Article on file with Plaintiffs attorney and incorporated by reference herein
- 61 -
309.
As a result of the aforementioned conduct, Defendants have violated
Plaintiffs constitutional rights to equal protection, and Plaintiff is entitled to seek redress under
42 U.S.C. 1983, and is further entitled to injunctive relief to the extent necessary to prevent
further disparate treatment and retaliation.
310.
the Defendant CITY and the RPD were the direct and proximate cause of the constitutional
violations suffered by Plaintiff as alleged herein.
311.
the Defendant CITY and the RPD were the moving force behind the constitutional violations
suffered by Plaintiff as alleged herein.
312.
As a result of the foregoing customs, policies, usages, practices,
procedures and rules of the Defendant CITY and the RPD, Plaintiff was subjected to an unlawful
stop, assault, battery, excessive force, seizure, arrest, search, false arrest, false imprisonment, and
malicious abuse of process.
313.
As a result of the foregoing, Plaintiff was caused to suffer personal
injuries, violation of his civil rights, physical harm, pain, emotional distress, anguish, anxiety,
fear, humiliation, loss of freedom, damage to his reputation and standing within his community.
314.
As a result of the foregoing, Plaintiff demands judgment against
Defendants in a sum of money to be determined at trial.
- 62 -
WHEREFORE and in light of the foregoing, it is respectfully requested that the Court
assume jurisdiction and:
[a] Invoke pendent party and pendent claim jurisdiction.
[b] Award appropriate compensatory and punitive damages.
[c] Award appropriate declaratory and injunctive relief.
[d] Empanel a jury.
[e] Award attorneys fees and costs.
[f] Award such other and further relief as the Court deems to be in
the interest of justice.
Dated: New York, New York

April 22, 2015
Respectfully Submitted,
ELLIOT DOLBY-SHIELDS, ESQ.

By:
~/s/~___________
Elliot Dolby-Shields, Esq.
Attorney for Plaintiff DELMAR LIPFORD
235 West 137th Street, No. 2F
New York, New York 10030
Ph: (585) 749-2089
edshieldslaw@gmail.com
- 63 -

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

UNITED STATES DISTRICT COURT

THE CITY OF ROCHESTER, a municipal entity, POLICE

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8. Plaintiff further invokes this Courts supplemental jurisdiction, pursuant to 28

IV. JURY DEMAND

Case 6:16-cv-06266 Document 1 Filed 04/22/16 Page 5 of 63

14. That at all times hereinafter mentioned, Defendant POLICE OFFICER

Defendant POLICE OFFICER ALEXANDER BALDAUF is being sued

in his individual capacity and official capacity.

Defendant POLICE OFFICER RICKY HARRIS is being sued in his

individual capacity and official capacity.

Defendant SERGEANT JOSH LEWIS is being sued in his individual

capacity and official capacity.

Defendant SERGEANT HENRY RIVERA is being sued in his individual

capacity and official capacity.

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

Defendant LIEUTENANT SA, ID # 1147, is being sued in his

individual capacity and official capacity.

Rochester POLICE OFFICERS JOHN DOES 1-10 are being sued in

their individual capacities and official capacities.

VI. STATEMENT OF FACTS

Case 6:16-cv-06266 Document 1 Filed 04/22/16 Page 7 of 63

for providing a therapeutic, nurturing, structured and positive milieu to emotionally,

Case 6:16-cv-06266 Document 1 Filed 04/22/16 Page 8 of 63

40. Thereafter, Defendant BALDAUF screamed at Plaintiff to, get on the

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77. Defendant SERGEANT HENRY RIVERA and Defendant LIEUTENANT

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Case 6:16-cv-06266 Document 1 Filed 04/22/16 Page 14 of 63

FIRST CLAIM FOR RELIEF

Case 6:16-cv-06266 Document 1 Filed 04/22/16 Page 15 of 63

The acts complained of were carried out by the aforementioned individual

As a result of the above constitutionally impermissible conduct, Plaintiff

Accordingly, Plaintiff demands judgment against Defendants in a sum of

money to be determined at trial.

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

As a result of Defendants impermissible conduct, Plaintiff was injured

As a result, Plaintiff seeks compensation in an amount to be determined at

SECOND CLAIM FOR RELIEF

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

One or more of the Defendant POLICE OFFICERS, including but not

The Defendant POLICE OFFICERS arrested Plaintiff without having

exigent circumstances for doing so.

There was no other authority for the arrest of Plaintiff.

The Plaintiff was conscious of this arrest.

The Plaintiff did not consent to this arrest.

Case 6:16-cv-06266 Document 1 Filed 04/22/16 Page 17 of 63

As a result, Plaintiff was damaged, harmed and injured, and seeks

compensation in an amount to be determined at trial.

THIRD CLAIM FOR RELIEF

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

As a result of the aforesaid conduct by the Defendant CITY and the

Defendant POLICE OFFICERS, Plaintiff was unlawfully detained and confined.

The Defendant POLICE OFFICERSin performance of their duties

Plaintiff was at all times consciously aware of his confinement by the

Defendant POLICE OFFICERS.

At no point throughout Plaintiffs unlawful detention and confinement by

the Defendant POLICE OFFICERS did Plaintiff consent to said confinement.