Staten Island Advance
October 8, 2014

NYPD officers are using more chokeholds, and mostly aren't being disciplined, CCRB report finds

By John M. Annese | 

STATEN ISLAND, N.Y. -- NYPD officers have been using banned chokeholds with increasing frequency, and have not generally been disciplined for it, according to a study released Tuesday by the new head of the city Civilian Complaint Review Board.

On Tuesday, Richard Emery -- who took the reins of the CCRB on July 17, the same day Eric Garner died in police custody on Staten Island after being placed in a chokehold -- formally issued the panel's findings after studying 1,128 chokehold allegations over the past five and a half years.

The CCRB had substantiated as misconduct only a handful of those allegations -- three in 2009; two in 2010; one each in 2011 and 2012; two in 2013; and one in the first six months of 2014.

More than half the allegations -- 608 in total -- could not be fully investigated, the report finds.

The report calls for a "Vision Zero" plan for chokeholds -- borrowing the term used by Mayor Bill de Blasio's initiative to reduce traffic fatalities.

It proposes that the NYPD and CCRB create an "inter-agency working group" aimed at enforcing the ban and reducing chokehold incidents.

According to the report, from July 2013 to June 2014, the CCRB received 219 chokehold complaints, "which was a level of chokehold complaint activity that the agency had not seen since the period of 2006-2010 when the CCRB received more than 200 chokehold complaints per year."

Also, between July 2013 and June 2014, chokehold allegations appeared in a higher percentage of complaints made to the CCRB than in any year since 2001, the report states.

"As measured in terms of the number of chokehold incidents compared to both the total number of complaints and the total number of force complaints filed, the use of chokeholds as a restraint technique persists and has gradually increased over time," the report reads.

Half of the officers named in chokehold complaints had a history of six or more CCRB complaints, while a quarter had a history of 10 or more complaints, the report states.

Officers accused of using chokeholds had an average of seven misconduct complaints filed against them, while officers with CCRB complaints against them who had never been accused of using chokeholds had an average of four complaints.

Several pages deal with what, exactly, constitutes a chokehold, concluding that the NYPD definition, according to the report, "unequivocally forbids any pressure to the neck, throat or windpipe that may inhibit breathing."

According to a statement by Emery, "Judges in the NYPD's trial room emasculated the plain language of the chokehold ban and repeatedly refused to apply the rule as written, decisions upheld by the Police Commissioner.

"As a result, officers who applied pressure to complainants' necks were not disciplined and CCRB investigators and Department prosecutors responded by not pursuing chokehold cases that should have been recognized as falling under the Department's prohibition."

The report found 156 chokehold incidents that were never alleged by the CCRB to be chokehold cases, and that the definition of what constitutes a chokehold varied from investigator to investigator.

"For some investigators, a chokehold exists if and only if breathing is restricted. For other investigators, it is the presence of pressure regardless of whether breathing is restricted that matters," the report reads.

A draft of the report was leaked to the New York Post last week, which led Patrolmen's Benevolent Association president Patrick Lynch to respond on Sept. 29, "Any report based on unsworn, unsubstantiated and poorly investigated complaints that were filed by criminals is totally meaningless."

The report has also come under fire from the CCRB's former executive director, who filed a federal lawsuit after her firing Monday, alleging that she "repeatedly made clear that the statistics underlying the proposed report are inaccurate."

The report offers a one-paragraph narrative describing the circumstances of Garner's death on July 17, based, according to the annotations in the text, on two New York Times pieces:

"On July 17, 2014, the death of Eric Garner shocked the City. The circumstances of Mr. Garner's death raised questions about the use of chokeholds by members of the New York City Police Department (NYPD) and the training police officers receive from the Department in the use of force. The encounter between Mr. Garner and officers from the 120th Precinct, in Staten Island, began when the officers sought to arrest Mr. Garner for the sale of untaxed cigarettes, which he denied. Although he did not attack the officers or attempt to flee, Mr. Garner resisted arrest. As officers attempted to put him in handcuffs and restrain him, with an officer positioning his arm around Mr. Garner's neck from behind, Mr. Garner complained repeatedly that he could not breathe. He died soon thereafter. An autopsy was conducted, and the NYC Medical Examiner's Office ruled Mr. Garner's death a homicide, which 'was caused by compression of his chest and a chokehold applied as he was being subdued.'"

Emery, a civil rights lawyer and longtime friend of Police Commissioner William Bratton, praised the commissioner's decisions to retrain the entire department, and review all use of force guidelines, after Garner's death.

He added in a prepared statement Tuesday: "Unilateral action is not enough. If there is one lesson to be learned from this study, one lesson that may even save lives, it is the need for a coordinated plan of action between the Civilian Complaint Review Board and the NYPD."

The full, 155-page report can be found here.