$50,000 award for excessive force upheld

A federal judge has denied a motion to reconsider a verdict award of $50,000 against two Rochester police officers for using excessive force and killing a dog without justification.

On Nov. 4, U.S. Magistrate Judge Jonathan W. Feldman issued a decision in the bench trial and found in favor of plaintiff Tina Cabisca on her state law claim for battery and her claim for excessive force. Feldman found in favor of the two officers — Daryl Hogg and Jayson Prinzi — on all other causes of action.

Feldman awarded Cabisca $50,000 in compensatory damages — $40,000 attributable to Hogg and $10,000 attributable to Prinzi.

On Nov. 15, the defendants filed a motion for reconsideration of Feldman’s decision. The motion was denied by U.S. Magistrate Mark W. Pedersen in a 23-page decision released Friday.

At the three-day bench trial in February 2019, the defendants included the two officers plus Rochester animal control officer Carrie Berkstresser. Rochester Police Investigator Nolan Wengert, who died April 9, 2017, was also named as a defendant. The executors of his estate were subsequently listed as defendants.

After the close of the plaintiff’s proof at trial, Feldman granted a defense motion to dismiss the claims against Berkstresser and Turner.

The defendants were represented by Rochester municipal attorney Spencer L. Ash. Cabisca was represented by attorney E. Robert Fussell, of Le Roy, Genesee County, through the trial. Fussell has retired and Cabisca is now represented by attorney Elliot Shields.

According to court papers: On Sept. 7, 2013, Cabisca put two children’s bicycles at the curb for anyone to take for free. That evening, a neighbor, Tyrone Flowers, took the bikes and started walking down the road to his house with them.

A gray Impala drove up and the driver got out and demanded that Flowers get on the ground, but the man refused to identify himself. The man was Wengert and he was driving an unmarked police car and wearing street clothes, not a police uniform.

Wengert, who thought Flowers had stolen the bicycles, threw Flowers to the ground, handcuffed him and then pulled out his police radio, which is when Flowers first realized he was a police officer.

Wengert called for backup and Hogg and Prinzi arrived at the scene. Flowers was put in the back seat of one car. The bikes were put in another car and they drove to Cabisca’s home to check out Flowers’ claim that the bikes were left at the curb.

Cabisca was inside her house with her three dogs. Her two grandchildren were sleeping. She realized someone was outside and she stepped out a side door with one of her dogs, Bailey, a boxer.

Bailey was barking as she approached the officers and Wengert backed up onto Cabisca’s front porch, drew his pistol and fired two shots, hitting the dog once.

Cabisca had no idea who the officers were or why they were on her property and they failed to identify themselves.

Cabisca pushed Hogg, “although it was probably not a push that would cause Hogg to fear for his safety,” Feldman wrote in the decision.

After she touched Hogg, he threw Cabisca to the ground and had his elbow in Cabisca’s chest area, Feldman wrote.

“Prinzi put his elbows and knees into the lower half of Cabisca’s body,” Feldman wrote.

While Hogg and Prinzi were on top of her, Cabisca said: “I can’t breathe. I’m asthmatic.”

Cabisca was 52 years old; 5 feet, 2 inches tall; and weighed 160 pounds. Hogg was 6 feet tall and 190 pounds. Prinzi was 6 feet tall and 200 pounds.

Cabisca was issued appearance tickets charging her with second-degree harassment and resisting arrest. She also was ticketed for having three unleashed dogs and three tickets for having dangerous dogs.

The harassment and resisting arrest charges were dismissed in Rochester City Court in October 2013. Cabisca was found guilty of two of the six charges related to her dogs, but those convictions were later dismissed after Cabisca filed an appeal.

“It was unfortunate, but not unreasonable for Wengert to draw his weapon and shoot Bailey,” Feldman wrote. “It was unreasonable and excessive for Hogg to place his 190 pounds of weight on top of Cabisca, place an elbow in her chest, and then lean on her even harder when she said she could not breathe and had asthma.

“Officer’s Prinzi’s use of similar force was excessive in that it was more force than was reasonably necessary to be applied under the circumstances present,” Feldman wrote.

“By the time the force was applied, law enforcement knew, or should have known, that neither the homeowner nor the pet did anything wrong and that plaintiff, although justifiably upset, presented no real threat to them,” Feldman wrote.

“Defendants did not show the decision was clearly erroneous, or show that there were additional facts unknown at the time of the decision that would change the outcome, or show that the trial court overlooked facts or controlling law Defendants raised at the time of the decision. Therefore, the Court denies Defendants’ motion for reconsideration of both the Judgment and the Decision and Order,” Pedersen wrote.

Pedersen’s order affirmed Cabisca’s position that the defendants lacked any factual or legal basis to support their motion for reconsideration of Judge Feldman’s thorough and well-reasoned decision, Shields wrote in an email.

Rochester city officials did not immediately respond to a request for comment.

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