Still Can’t Breathe
In July 2018, Detective Fabio Nunez approached 33-year-old Tomas Medina after hearing loud music on the streets of Inwood in upper Manhattan and demanded to see his identification to write him a summons for the noise. Medina said he had none, then kept arguing with the officer about whether the summons was necessary. When Medina tried to walk away, Nunez put him in a chokehold that lasted more than 20 seconds and tased him multiple times.
The next day, Chief of Department Terence Monahan told the New York Daily News that Nunez “used the necessary force to take that individual into custody.”
The patrol guide provides no allowances for using the maneuver, defined as “any pressure to the throat or windpipe which may prevent or hinder breathing or reduce intake of air,” but other department guidelines note that chokeholds will be reviewed on a case-by-case basis “to determine whether, under the circumstance, the actions were reasonable and justified.”
The department’s ambivalence was evident late last spring, after the nation watched George Floyd die with his neck under the knee of a Minneapolis police officer, when NYPD First Deputy Commissioner Benjamin Tucker contradicted himself on whether chokeholds are permissible.
“The prohibition on chokeholds is firm; it shall not be used,” he said at an online City Council hearing. “There are those times, and maybe other times, when you can use it, but it is prohibited.”
The Civilian Complaint Review Board, which investigates police misconduct, has substantiated 40 instances since Garner’s death of officers using prohibited chokeholds. The board can recommend discipline, and its lawyers serve as prosecutors in officers’ administrative trials, but the final say on punishment is up to the NYPD.
Not a single cop since the Garner case has been fired for a substantiated chokehold.
Most lost vacation days or were not punished at all.
It is within this context that videos keep emerging of men, mostly of color, with their necks in an NYPD officer’s grip. The footage demonstrates the ease with which officers still use chokeholds, even in cases where they face no physical threat.
In a supportive housing site in the South Bronx, which serves homeless adults with a history of mental illness and substance abuse problems, Officer Omar Habib, without physical provocation, put a resident in a chokehold on Thanksgiving 2017 for calling him and others “fucking Keystone Kops,” according to interviews and Internal Affairs Bureau records.
And in the course of a single 2018 protest, against the detention of an immigrant rights activist, Officer Numael Amador put two people in chokeholds. “He grabbed me by the throat,” the Rev. Juan Carlos de Ruiz said. “I woke up the next day; my bones hurt, my throat. I was beat up.”
Nunez, whose chokehold was publicly excused by department leadership, went on to use another chokehold two months later.
It was the third chokehold complaint on his record, in a disciplinary history that included 46 allegations and five lawsuit settlements that cost city taxpayers over $200,000. As part of an ongoing lawsuit brought by Medina, a Manhattan federal judge, Alison Nathan, ruled that Monahan and then-Police Commissioner James O’Neill could be held liable for Nunez’s conduct.
“The NYPD’s custom of tacitly endorsing, or at least failing to discipline, the use of unconstitutional chokeholds proximately led to Nunez’s continued use of the practice,” she wrote in a ruling. “It was reasonably foreseeable that Nunez, and officers like him, would continue to engage in the practice unabated due to the relative impunity that resulted.”
Nunez’s discipline is pending for the 2018 chokeholds. Amador, who put two people in chokeholds during the protest, lost 30 days of vacation time and was transferred out of the Strategic Response Group, which is considered an elite unit. The NYPD would not disclose the punishment Habib got for the Thanksgiving chokehold because of an unresolved lawsuit aiming to keep the disciplinary histories of officers secret. He works the streets today.
“These dudes came in on a bunch of brute, brute shit … like they were looking for trouble,” said Dennis Prewitt, the man taken down by Habib and the officers with him. Prewitt was punched and tased during the confrontation. He wasn’t charged or arrested. “If this was a crime that I committed out in society … I’d be sitting in the jailhouse,” he said.
Officer Omar Habib Uses a Chokehold on Dennis Prewitt
Security camera video shows Habib attacking Prewitt after a verbal dispute in an elevator.
Officials with the NYPD did not respond to questions about discipline, training, the department’s position on chokeholds or incidents noted in this story. They ignored requests to interview Police Commissioner Dermot Shea as well as officers named in the piece. We tried to contact officers themselves but they either declined to comment, did not return calls and messages or could not be reached.
To understand why officers have been able to keep using chokeholds with little consequence, ProPublica and THE CITY analyzed CCRB data obtained this summer by ProPublica and the New York Civil Liberties Union and interviewed more than 50 former CCRB investigators and supervisors, former high-ranking NYPD personnel, attorneys and chokehold victims. All of the data cited on chokeholds stems from the two databases, which run through June 30, 2020.
The review found that the light punishments arise from a number of factors, including a lack of respect among NYPD leadership for the CCRB’s investigations and findings; the CCRB’s own recommendations sometimes calling for no more than forfeiture of vacation time; and a lingering mentality that chokeholds, a once-sanctioned alternative to lethal force, can at times be a useful tool for officers.
“It’s almost impossible to take a person into custody who’s resisting without some type of bear hug, arm lock,” said Joe Esposito, who was NYPD’s chief of department from 2000 to 2013. “People who don’t do this for a living are trying to make rules for people that do it every day.”
The CCRB has received 880 chokehold complaints since Garner’s death in 2014 through June 30, 2020. Because the maneuvers often don’t result in visible injuries, investigators can have trouble substantiating them without clear video evidence. The most useful views come from fixed security cameras, witness cellphone video or body-worn camera footage from a nearby officer. The body camera on an officer performing a chokehold, fixed to their chest, isn’t likely to capture a chokehold.
In the rare instances in which the CCRB can substantiate that an officer used a chokehold, it often asks the NYPD only to dock officers’ vacation time. Despite being set up as an independent check on the department, the CCRB still relies on police to produce documents and videos essential to its probes, and Jonathan Darche, its executive director, said that if punishment recommendations were too severe, it could hurt the board’s ability to influence disciplinary outcomes.
“In the end, our job is to win the cases,” he said. “Because what is the benefit of arguing for termination in a way that makes you less credible, and then you lose the case?”
Several new measures promise tougher consequences but come with caveats that could revert punishments to the status quo. A city law signed in July makes any police chokehold a misdemeanor crime, but it is tied up in a lawsuit and has already seen attempts to water it down by the same City Council that passed it. A state law enacted in June makes police chokeholds a felony, but only in cases with serious injury or death.
A much-touted guideline for penalties, known as a discipline matrix, was implemented just days ago by the NYPD. It was propelled by a separate city law and requires any officer found to have used a chokehold be terminated. If there are mitigating factors, the officer can be forced to resign, which may allow the officer to keep their pension benefits. However, officers need to be found guilty of chokeholds by the department itself in a disciplinary trial; officers have been found not guilty even of chokeholds the CCRB substantiated. And final decisions still rest with the police commissioner. Those who have served in the role have historically shown a willingness to downgrade penalties.
As long as police know there isn’t going to be consistent and significant punishment for chokeholds, they will continue to do them, said Paul Butler, a professor at Georgetown University Law Center and author of “Chokehold: Policing Black Men.” They may calculate that losing vacation time is worth it, “because I need to teach this motherfucker a lesson, or … my life or my safety is in danger,” he said. “Why do the police do this? Because they can without consequence.”
Erosion of a Ban
Mayor Bill de Blasio named Richard Emery chair of the Civilian Complaint Review Board the morning of July 17, 2014. Hours later, Eric Garner was killed. His death was recorded by a bystander and quickly went viral, sparking national outcry.
Two days later, Emery ordered the agency to study the issue of chokeholds in a bid to understand why they were the focus of so many complaints against police officers despite the patrol guide’s ban. That October, the agency produced a 139-page report that described how the NYPD had treated chokehold complaints over the years.
In the mid 2000s, the administrative judges who recommend whether and how to punish police personnel for misconduct began to diverge from the patrol book definition in their decisions.
The judges, who work for the NYPD, introduced factors such as the intent of the officer, the length of time the maneuver was used and whether the victim’s breathing had been restricted, the report found. The language in the patrol guide makes no such allowances.
Eight of the nine cases in which the CCRB sought discipline from the NYPD for a chokehold between 2003 and 2008 were dismissed or yielded a not guilty finding, the report found.
The altered definition of a chokehold seeped into the CCRB’s work. The internal review found that some teams of investigators would only substantiate chokeholds if they could prove that a victim’s breathing had been restricted.
“In this respect, the chokehold rule ‘mutated’ to adapt to the NYPD disciplinary process, rather than the disciplinary process following the NYPD rule,” the report said.
Emery, who made a number of reforms to the agency’s structure early on, used the report’s findings as an opportunity to get his team back in line with the policy.
“What we did was we said: ‘No. No longer are you going to look at it from the point of view of an attempt to restrict breathing or blood flow,’” Emery said. “‘But if there’s a touching of the neck that could possibly restrict breathing or blood flow, you are to deem that a chokehold.’”
Around the same time, he pushed the NYPD to adopt a disciplinary matrix with the aim of making punishment more consistent and fair.
Those familiar with the disciplinary system say data at the time showed that punishment for internal infractions — such as an improper log book or refusal to follow an order — had often been more severe than for misconduct against civilians.
Emery said that top police officials seemed open to addressing it, and that a series of meetings and productive dialogue ensued. But in late 2014, the talks collapsed without an explanation from police officials.
“It was abandoned, and I couldn’t revive it, no matter how much I tried,” Emery said. “They didn’t ever say to me they were abandoning it. They just kept rescheduling and delaying and avoiding it. And the consequence of that was that it was never ultimately pursued.”
As Emery was working to bolster his agency’s handling of chokehold investigations, NYPD leadership was publicly maintaining wiggle room on the definition of a “ban.”
On June 29, 2015, then-NYPD Commissioner Bill Bratton testified at a City Council hearing that the department’s policies prohibited chokeholds — except in “exigent circumstances,” such as in defense of the officer’s life or the life of someone else.
The following year, the Police Department revised its use of force guidelines by delineating 11 factors that can be used to determine whether a use of force is justified. These include the nature and severity of the alleged crime and whether the suspect is resisting arrest, as well as the “presence of hostile crowd or agitators.” The revision noted that chokeholds and other uses of force would be reviewed on a case-by-case basis “to determine whether, under the circumstance, the actions were reasonable and justified.”
In a case shortly after the guideline changes, an NYPD administrative judge acknowledged that significant force by the officer during a struggle to handcuff a suspect had been justified, but also determined that a prohibited chokehold had occurred.
Bratton, the police commissioner at the time, reversed the guilty finding on the basis that the officer faced extreme danger during a lengthy struggle. Bratton felt the officer’s actions were necessary under the circumstances, the documents say. He declared the officer not guilty. Bratton didn’t respond to requests for comment.
This spring, amid a public conversation about chokeholds after Floyd’s death, then-City Council member Rory Lancman, D-Queens, criticized NYPD leadership over the use of force guideline changes. “This mayor and the NYPD in 2016 actually made it easier for an officer to get away with using a chokehold rather than harder,” said Lancman, who now works for the office of Gov. Andrew Cuomo.
Butler, the Georgetown law professor, said officers shouldn’t be asked to make calculations in the heat of the moment about the appropriateness of a chokehold and that exceptions create ambiguity. “A statement that police can’t use chokeholds unless A, B or C is the opposite of clarity,” he said. “A ban on chokeholds is clear. … We need a clear, straightforward rule: ‘You cannot do this.’”
But Emery said a hard and fast ban on chokeholds is perceived by many in police leadership as “unrealistic” and “not enforceable.” Some of the higher-ups were cadets at a time when the chokehold was still taught at the police academy as an alternative to lethal force. Others told reporters the messiness of police work means arms are going to end up near suspects’ necks at times, whether done intentionally or not.
“There’s a lot of sympathy for the cop in the field, trying to subdue somebody when that person is struggling and probably very strong and very capable of resisting,” Emery said.
The videos of chokeholds substantiated by the CCRB show they don’t all look the same. Some show hands putting pressure on throats; others show arms briefly — for a second or two — around necks amid a physical struggle. Some capture maneuvers that come with no physical provocation, last longer and appear more intentional.
Not all officers agree that chokeholds are an inextricable part of policing.
Wilbur Chapman, a former deputy commissioner of the NYPD who was once in charge of training, worked the streets at a time when chokeholds were taught and accepted. Still, he said he never used one and that he opted for tactics he felt had less potential for death.
“If I hit somebody across the kneecaps with a nightstick, that was the end of the battle. Because once you can’t walk, you can’t fight me,” Chapman said. “Yes, in a tussle, people are going to choke each other. But that’s not an excuse. The idea is not to get that far.”
It was a request by the police to turn down loud music outside the El Mundo Car Dealership in upper Manhattan that led to the physical encounter between Nunez and Medina in the summer of 2018. After Medina walked away, declining to show identification, Nunez pressed him against a vehicle and told him to put his hands behind his back. But Medina was gesturing with his arms as he continued questioning the escalation.
Nunez then put his right arm around Medina’s neck and pulled him backward, in a move that the CCRB determined to be a chokehold.
Detective Fabio Nunez Uses a Chokehold on Tomas Medina
Videos show Nunez, who has three chokehold complaints on his record, escalating the situation after responding to loud music.
CCRB investigators asked Nunez: Did he use a chokehold? His response reflected a fundamental misunderstanding of the banned maneuver.
“You need two arms to do a chokehold. You don’t do a chokehold with one arm — it’s impossible,” said Nunez, according to an audio recording of the interview obtained by THE CITY and ProPublica.
Nunez added: “If you use a chokehold on someone, they’re not able to speak at all. He was talking to me nonstop.”
That statement is “patently false,” said Gary Weissman, a lung specialist at the University of Pennsylvania Perelman School of Medicine. In the wake of Floyd’s killing last spring, Weissman co-wrote an article in the Annals of Internal Medicine debunking the myth that because someone can talk, they can also adequately breathe.
“Being able to speak does not at all imply that the patient is able to sufficiently ventilate, meaning that they’re able to breathe enough oxygen, enough air down into the right parts of the lungs, to sustain bodily functions,” Weissman said. “That’s a myth that needs to be removed and debunked.”
Weissman also said recent research shows that, aside from inadequate oxygen, there is a danger of inadequate blood flow to the brain when a chokehold is used.
NYPD did not respond to questions about how it trains officers about the dangers of chokeholds.
An Inhibited Board
At a disciplinary trial last month, held in a court-like room at 1 Police Plaza in lower Manhattan, a video displayed what CCRB investigators were certain was a chokehold. Ronald Grullon, who was ultimately sentenced to probation on drug charges, had scaled the 9-foot gate outside a Manhattan brownstone as he ran from police. Officer Paul Rodriguez caught him in a two-arm grip that was captured from behind by a building surveillance camera.
Moments later, with handcuffs bracing his wrists, Grullon wailed so loudly that a woman on the fifth floor fire escape of a building across the street heard him. “I started to hear him saying louder and louder, distressed wails, and saying, ‘I can’t breathe,’” Laura Davis testified.
The officer’s lawyer, Stuart London, argued at the hearing: “The evidence will show that ‘I can’t breathe’ is the new rallying cry if the police chase you and ultimately catch you. There was no chokehold.” He said Rodriguez’s left arm grabbed Grullon by the chin while the right arm pulled down on his nose or mouth.
To Claudia Avin, an attorney representing the CCRB, the video was indisputable. “This was not his arm around his chin and his nose. … It’s ridiculous to think that’s what’s depicted in the video,” she said in her closing statement. “There’s no doubt that a chokehold occurred here.”
When asked what punishment the CCRB thought Rodriguez deserved, Avin said he should lose 10 vacation days. “That’s what the evidence supports,” she said.
Davis, the witness, told THE CITY and ProPublica she had taken her role in the case seriously partly because of a harrowing police encounter experienced by her husband, who is Black. She said she was stunned when she learned only vacation days were at stake in the case.
“That terrifies me, for my kids, for my husband, for every one of my Black family and friends,” said Davis, who is white. “That’s not any sort of accountability to me whatsoever.”
A review of the 40 substantiated chokehold allegations since 2014 shows that of the 27 with final dispositions, the CCRB board or its prosecutors recommended vacation loss as the highest penalty in 17 of them.
Board members work in panels of three and make recommendations of whether to impose discipline at the precinct level — which handles punishments ranging from verbal reprimands to 10 days’ vacation loss — or whether to take the case to a disciplinary trial, where they can seek a harsher penalty ranging from more vacation loss to termination. At trial, it’s the CCRB prosecutors and their supervisors who specify the severity of discipline sought.
Former CCRB staffers said the recommendations of lesser punishment had to do in part with the composition of the panels and the influential voice of the police commissioner’s appointees. “Your ability after months of investigation to actually get a substantiation … could largely depend on who was on the panel for your case,” said Katie Matejcak, an investigator from 2016 to 2018.
Emery said a lighter punishment could be justified in cases where an officer feared for his or her life.
He and Darche, the CCRB’s executive director, spoke of a need to preserve the board’s credibility by recommending punishments they thought the NYPD would adopt. Darche said the agency would appear unreasonable and less credible if it were to make penalty recommendations that were “out of line with precedent.” If previous officers had lost vacation days for a similar chokehold, the suggested discipline in subsequent cases would have to remain consistent.
Emery acknowledged such an approach means recommended penalties had to be softened at times, but he said there was little option because the NYPD maintained the final say anyway.
“I was very interested in making the CCRB relevant and getting [the department] to adopt our recommendations — both on misconduct and on punishment — at a much, much higher level than it ever had. The CCRB becomes meaningless unless there’s a high degree of correlation,” he said.
Roger Smith, a top attorney at the CCRB from August 2007 to May 2016, said some of the seemingly light penalties stem from a recognition that the alternative option is worse. “Because we know what these relatively lenient penalties are replacing in some cases,” Smith said. “They’re replacing nothing.”
Butler said light punishment can send a different message to the community.
“It’s hard to think of a more explicit way of saying that Black life doesn’t matter,” Butler said. “There still is nothing approaching justice because the penalty is so light.”
In 2018, following concerns from CCRB board members about a lack of formal guidelines for determining penalties, the agency approved a framework for its discipline recommendations. The nonbinding guidance says they should seek “charges and specifications,” which means taking the cases to administrative trial for any substantiated chokehold.
Emery and Darche said the appropriate penalty for the use of a banned chokehold maneuver is termination, although Emery added that only applies to cases where there were no mitigating circumstances. Darche pinned his hope on a reset he expects the new matrix to bring.
“I think that termination is [the] appropriate penalty for using a chokehold, and I think that the new matrix reflects that,” he said.
Judge George Grasso, who was NYPD’s first deputy commissioner from 2002 to 2010, said with proper funding and expertise, it’s time for CCRB to have the final say in discipline for its complaints. “And then the officers would know, and the public would know, that there was real objective, outside accountability,” he said.
A Lenient Department
Since the Garner case, CCRB lawyers have taken 15 chokehold cases to disciplinary trial at the NYPD, including two recent cases whose outcomes haven’t been made public. In six of the cases, officers received no penalty after being found not guilty.
Officers can be cleared of a chokehold for a number of reasons. The complainant may not have mentioned the chokehold in early statements to investigators or the video may not clearly show exactly where the officer’s arms were placed.
It can be hard to deduce after the fact why the CCRB loses a case. In one reviewed by ProPublica and THE CITY, the NYPD determined Officer Richard Danese was not guilty of five use of force charges including a chokehold despite photos that the alleged victim provided as evidence of his injuries. There was no video evidence. It’s not clear if the decision was made by the trials judge or the police commissioner, and NYPD officials wouldn’t say.
Darrell Dennis, 21, said he was hanging out with friends near his Clifton Place apartment in Brooklyn on July 28, 2015, when Danese and other officers arrived and asked Dennis for ID. He said he left it at home and was threatened with arrest.
Within minutes, he was in handcuffs. Danese allegedly told him, “A little bitch like you — I will fuck up,” to which Dennis said he responded, “Suck my dick.”
Dennis says multiple officers then threw him face down onto the floor of a police van, shut the door and started driving to the 79th Precinct. Throughout the ride, Dennis said, Danese put his knee on his back, punched him several times in the face and pulled his neck back in a prolonged chokehold while punching his ribs.
Dennis was charged with assault for allegedly stabbing Danese with his keys. He disputed this claim, which was ultimately dismissed, arguing that he had been handcuffed from the outset of the encounter.
CCRB prosecutors sought the termination of Danese, who a decade earlier had been indicted along with his partner on multiple felony charges for allegedly taking an egg-throwing 14-year-old to a wooded area on Staten Island and leaving him there in his boxers and socks. The duo pleaded guilty to disorderly conduct, a misdemeanor, after the victim stopped cooperating with the district attorney’s office, according to reports at the time.
Danese is among three officers with substantiated chokehold complaints we examined who have been noted to have credibility issues in records compiled by local district attorneys, along with Nunez and Detective Manuel Cordova.
Cordova was involved in an August 2017 sting that led to the arrest and conviction of Robert Ortiz in East Harlem on charges that included drug possession. The CCRB substantiated a chokehold allegation against Cordova in the course of the arrest, but more than three years later, he has yet to face an administrative trial.
In a sign of the level of secrecy surrounding police discipline, even Dennis didn’t know that Danese’s disciplinary trial ended in a not guilty decision until he was informed by a reporter this month. The only outcome he knew of was the $77,500 civil settlement he won from the city in April 2017 for the same incident.
“It’s not really justice. It’s not, ‘We’re going to admit we were wrong.’ It’s more like: ‘Here, take this money. You’ll be fine,’” Dennis said. “I feel he should have gotten fired at least. He’s clearly a menace to our streets.”
In five of the 15 chokehold cases that went to administrative trial, the NYPD downgraded the punishments CCRB prosecutors recommended. This included three cases in which the attorneys sought a year of probation for officers, but administrative judges or the police commissioner decided to dock 10 vacation days instead.
Additionally, among eight cases where the CCRB board sought only vacation loss, seven resulted in the NYPD forgoing discipline altogether. The eighth case was downgraded by the NYPD from 10 to five vacation days’ loss.
The tendency to downgrade CCRB recommendations is not unique to chokeholds. Over the past two decades, the NYPD commissioner has imposed lesser discipline than what the CCRB recommended in 71% of the 6,900 cases where the CCRB sought the most serious charges, according to an analysis by The New York Times.
Elected officials and advocates hope the latest measures including the new matrix and the city and state laws criminalizing the use of chokeholds will lead to more substantive discipline.
To date, only one NYPD officer has been charged under the new laws, stemming from an incident on the boardwalk in Far Rockaway, Queens. The incident, captured on cellphone and body-worn camera, happened just days after the New York City Council passed the law criminalizing chokeholds. In the cellphone video, a man can be seen in a chokehold for about 10 seconds. The cop with his arm around the man’s neck, later identified by the victim’s public defender as Officer David Afanador, releases the man after onlookers complain about the chokehold and a fellow officer taps the cop to release his hold. The man’s body appears limp in the video and he was taken to a hospital. Afanador’s lawyer said he has pleaded not guilty to the charges. His next court date is March 24.
The new matrix, which CCRB officials hope will reset discipline standards, went into effect on Jan. 15. It will take months or longer to assess the impact.
Dennis said he isn’t confident much will change with the new measures.
“The law isn’t really going to change anything because they’ll find their way around it,” he said, “because they are the law.”
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