Dep't of Correction v. Russell

Petitioner proved that a captain used an impermissible neck restraint against a detainee and submitted a false or misleading use of force report about the incident. Penalty of 49 suspension days recommended. REPORT AND RECOMMENDATION Petitioner, the Department of Correction (“the Department”), brought this disciplinary proceeding under section 75 of the Civil Service Law against respondent, Captain Barrington Russell. Petitioner alleges that at approximately 4:32 p.m. on August 10, 2024, while respondent was assigned to the Eric M. Taylor Center (“EMTC”), he utilized a prohibited neck restraint by grabbing person in custody Prince Faines (“Faines” or “the detainee”) “around the neck and upper back with both his hands, causing [Faines] to fall on the ground.” Petitioner further contends that respondent submitted a “false, misleading, inaccurate and/or incomplete report” about the use of force incident with Faines by failing to report that he “placed his hands around [Faines'] neck and upper back area” (ALJ Ex. 1). This case is designated for expeditious resolution under section F(2) of the Nunez Action Plan. See Nunez v. City of New York, 11 Civ. 5845 at 18-19 (LTS)(JCF) (S.D.N.Y. June 14, 2022). At a one-day trial, held via remote videoconference on December 3, 2024, petitioner called Carlos Salazar, an investigator in the Department’s Investigations Division, and introduced video surveillance (“Genetec”) evidence as well as respondent’s use of force report. Respondent produced documentary evidence consisting of the investigative Preliminary Review report, two use of force witness incident reports, and a contemporaneous report from an Assistant Deputy Warden to an Assistant Commissioner regarding the incident.¹ As set forth below, I find that the charges are sustained. I recommend that respondent be suspended for 49 days, with credit for any pre-trial suspension imposed. ANALYSIS The charges concern a use of force that took place in housing area 3 upper at EMTC between respondent and detainee Faines. Petitioner has the burden of proving these charges by a preponderance of the credible evidence. See Dep’t of Correction v. Hall, OATH Index No. 400/08 at 2 (Oct. 18, 2007), adopted, Comm’r Dec. (Nov. 2, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD 08-33-SA (May 30, 2008). Preponderance has been defined as “the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.” Prince, Richardson on Evidence §3-206 (Lexis 2008); see also Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, 196 (1976). Petitioner contends that respondent used a neck restraint to force Faines to the ground, in violation of the Use of Force Directive (“the Directive”), which prohibits high-impact force, including neck restraints, unless a staff member or other person “is in imminent danger of serious bodily injury or death, and where lesser means are impractical or ineffective” (Pet. Ex. 1 at §II(G); Tr. 11-12). Respondent’s counsel does not dispute that during the use of force, respondent’s hand made “contact” with the back of Faines’ neck as respondent brought Faines to the ground (Tr. 108-09). However, counsel argues that the contact was inadvertent and, under this tribunal’s case law, did not constitute a prohibited neck restraint (Tr. 14, 103-09). As to the false report, while petitioner contends that respondent deliberately omitted any reference to grabbing Faines by the neck (Tr. 115-16), respondent’s counsel highlights the brief nature of the encounter to assert that the omission was inadvertent and that the report, therefore, was not false or misleading under OATH case law (Tr. 110-11). While relying in part on other evidence, both parties agreed that the Genetec surveillance video, taken from camera angle 168.17 (Pet. Ex. 4) was the best evidence of the incident (Tr. 14, 113). Video Evidence The Genetec surveillance video from August 10, 2024, contains no audio but shows the following.² A captain (identified as respondent) enters a room in housing area 3 upper (4:29:21.663). A detainee (identified as Faines) is on the far side of the room, wearing a white tee shirt. He stands with his left arm touching the wall, in front of a closed door which exits the housing area (“the door”). There is a green mattress on the floor to his left side, next to the wall, and a standing pedestal fan behind him. Another detainee, who is not wearing a shirt, is talking on the telephone on the wall on the right side of the room. A correction officer (identified as Riccardo) is on the same side of the room as the detainee on the telephone. Riccardo stands next to a bench (identified as the B post desk), on which is a book (which respondent characterized in his use of force report as the B post logbook). Respondent glances at Faines as he enters the room and passes Faines on his way toward Riccardo. Riccardo and respondent then move toward the bottom of the video screen and pass out of view (4:29:21.663-4:29:27.660; Tr. 29-30; Pet. Ex. 5). Respondent does not return into the video frame for about two minutes (4:31:49.157). During this interval, Faines has remained in basically the same place, although he has picked up and put down the mattress, and turned around to face backwards and then forwards. Respondent enters and sits down at the B post desk next to the logbook (4:31:49.157-4:31:51.857). Faines, who remains standing close to the opposite wall, gestures toward respondent before folding his arms (4:31:49.157-4:31:52.577). Faines stays in the same place, facing respondent and gesturing towards him with both hands. Respondent remains seated, puts the logbook down in front of him, and looks towards it before looking up at Faines (4:31:51.257-4:31:57.357). Faines then takes a few steps toward the door while holding the mattress with one hand and gesturing toward respondent with the other (4:31:57.357-4:31:59.957). Respondent is not visible on screen during much of this time, although at one point he stands up, sits down again, looks toward Faines, and appears to talk to him (4:31:50.157-4:31:53.157). Meanwhile, another correction officer (identified as Grey) has approached the door on the opposite side from outside the housing area and stands there. Grey can be seen through the glass windows on the door (4:31:59.057; Tr. 31). Faines, who continues to gesture and speak, takes several steps forward toward respondent, but they remain at arm’s length (4:32:12.953-4:32:15.653). Respondent gestures with his hands toward Faines and appears to speak with him but remains seated, even as Faines comes closer and gestures toward him. Faines appears agitated (4:32:12.953-4:32:16.953). Respondent stays seated, at one point reaching out with his right arm extended and palm up toward Grey, who is still standing outside the door (4:32:17.953-4:32:18.153). As respondent does so, Faines lowers his arms to his body and takes several steps away from respondent, toward the fan (4:32:16.753-4:32:18.153). The other detainee, who has just hung up the phone, walks toward respondent and Riccardo while a third detainee, wearing a black tank top, comes into the frame from the lower left and moves the top of the fan diagonally so it faces the opposite wall (4:32:18.153-4:32:20.753). Faines has moved away from respondent to the opposite wall and is now standing with his back very close to that wall (4:32:20.753). The detainee who was on the phone retrieves an object near the phone and walks toward the back of the area, out of the video frame (4:32:20.753-4:32:25.257). Faines has taken several steps toward the center of the room, but remains a distance from respondent. His arms are clasped in front of him and he faces respondent. Respondent remains seated. The detainee in the black tank top is still present, holding on to the fan (4:32:21:453-4:32:26.357). Respondent, still seated, holds up his right hand as if to gesture while Faines remains in the same place. Grey is still present outside the door (4:32:26.257). Faines takes several steps closer to respondent, gesturing with both hands. Respondent remains seated. The detainee in the black tank top has moved out of the frame (4:32:28.557). Faines walks toward respondent, faces him, bends forward, and gestures toward respondent with his left arm pointed toward respondent’s face. At this point Faines is within a foot of respondent (4:32:30.357-4:32:31.257). Faines then straightens so he is no longer bending toward respondent, and moves his hands toward his sides (4:32:31.657). Respondent remains seated, and gestures toward Faines with his right hand, in which he holds a pencil or pen (4:32:31.757). Riccardo takes several steps forward toward Faines but respondent puts his right hand out as if to stop Riccardo from advancing (4:32:31.857-4:32:33.257). Riccardo moves closer to the fan (4:32:33.157). Faines remains standing (4:32:33.157). Respondent appears to say something in Faines’ direction, then bows his head as if looking at something else. Faines continues to talk and gesture before turning and walking toward the mattress on the floor away from respondent (4:32:33.357-4:32:39.657). Faines, who by this time is in the center of the room, turns and looks towards respondent, who has remained seated (4:32:42.157). Suddenly, respondent stands up and walks toward Faines (4:32:42.457-4:32:45.757). As respondent approaches Faines, Faines turns and looks toward the door (4:32:45.757). Respondent and Faines both walk toward the door and stop directly in front of it (4:32:45.757-4:32:47.257). Faines is standing to the left of and slightly in front of respondent. The two men are close enough so that their bodies are almost touching (4:32:47.257). They turn slightly toward one another so that they are facing each other, with Faines gesturing with his hands near his waist and respondent keeping his hands near his side (4:32:47.257-4:32:48.157). They continue to talk to each other as Grey approaches the other side of the door (4:32:48.157-4:32:54.457). Riccardo stands next to the fan, facing respondent and Faines while they talk (4:32:55.257). At this point, therefore, there are two correction officers present in the vicinity: Grey, on the other side of the door, and Riccardo, standing several feet away from respondent and Faines, looking toward them. Respondent, facing Faines, gestures with his right arm toward Faines and then points toward Riccardo before lowering his right hand and arm to his side. Faines stands with both his arms folded against his chest while respondent keeps his hands by his side (4:32:54.457-4:32:55.957). Grey opens the door to the area. Faines, still facing respondent, reaches forward with his left arm toward the door while taking a step forward with his left leg (4:32:56.057-4:32:56.357). Respondent reaches with his left arm toward Faines, sweeping from Faines’ back upwards so that his left arm is across Faines’ back, near Faines’ shoulder (4:32:56.357-4:32:56.857). Respondent’s right arm is not at respondent’s right side but is not visible in the frame (4:32:56.857). Respondent, with his left arm and left hand around Faines’ back, and his right arm appearing to be around Faines’ upper torso area, pulls Faines toward him (4:32:57.057-4:32:57.257). Faines is facing the wall where the phone is located and respondent is facing the opposite wall (4:32:57.257). As respondent pulls Faines downwards away from the door, Faines’ knees are bent so that the top of respondent’s head is about the level of Faines’ chin (4:32:57.257). Respondent continues to pull Faines downwards and away from the door. He reaches with his left arm toward Faines’ head and grabs the back, right side of Faines’ neck with his left hand to propel Faines forward (4:32:57.357). A tenth of a second later, respondent moves his left hand slightly forward from the back of Faines’ neck to the side of Faines’ neck (4:32:57.457). At this point respondent’s hand is above Faines’ tee shirt. Faines’ entire tee shirt on the right side, including the shoulder area, is visible in the frame (4:32:57.457). There is no space between respondent’s hand and the back of Faines’ neck. While pulling Faines downwards with his left hand, respondent presses his right hand against Faines’ left side, between Faines’ shoulder and Faines’ neck. Respondent’s hand is visible as a darker area against Faines’ white tee shirt, but a portion of the tee shirt is visible between respondent’s hand and Faines’ neck (4:32:57.457). Respondent then moves his left hand slightly from the side of Faines’ neck toward the front of Faines’ neck while pressing with his right hand against the left side of Faines’ face. It is unclear from the video whether respondent’s right hand is pressing against Faines’ neck or is pressing against Faines’ jaw, right above his neck (4:32:57.557). Either way, however, respondent’s right hand is pressed against Faines’ face, as the entirety of Faines’ white tee shirt on the left side of his body is visible and there is no space between respondent’s right hand and Faines’ face (4:32:57.557). Thus, respondent has both of his hands on Faines’ facial area as he uses a sweeping motion to propel Faines to the ground (4:32:57.557). Respondent releases his hold on Faines about a tenth of a second later (4:32:57.657). Faines falls to the ground with his head and body striking the ground (4:32:57.557-4:32:57.857). Riccardo takes several steps forward and stands near Faines as Faines gets up. Riccardo has his right hand on his baton (4:32:57.957-4:33:01.357). Faines and respondent face each other, with respondent standing with his back to the door. Faines takes a few steps toward respondent and gestures while respondent points toward Faines with his right arm extended and his right hand holding what appears to be a chemical agent spray cannister (4:33:07.453-4:33:07.753). Respondent lowers his right arm (4:33:07.853), then Faines takes a few steps toward the middle of the floor, facing respondent, who is still holding what appears to be the spray cannister (4:33:07.453). Faines continues to gesture toward respondent and takes a step toward respondent, who points toward Faines with his left hand (4:33:08.053-4:33:12.753). Faines continues to speak as respondent leaves the area through the open door (4:33:35.257). Other Evidence Other evidence in the case consisted of Salazar’s testimony, respondent’s use of force report, and reports submitted by Grey, Riccardo, and Assistant Deputy Warden Rivera. Salazar’s testimony Salazar has been employed by the Department for a little over a year and a half as an investigator in the Investigations Division, during which he has investigated approximately 170 use of force cases (Tr. 18-20). Based largely upon his review of the video, he concluded that the use of force was excessive because respondent employed a neck restraint against Faines by having his left hand on the back of Faines’ neck as he pushed Faines to the ground. A neck restraint is prohibited under the Directive except when necessary to counter deadly force (Tr. 28, 32, 34-35; see Pet. Ex. 1 at §II(G)). Salazar also concluded that respondent submitted a false use of force report, in violation of the Directive, by failing to indicate that he used a neck restraint (Tr. 39-40). Acknowledging that the Directive does not define “neck restraint,” Salazar asserted that any touch to the neck is a neck restraint (Tr. 54). He said that respondent could have taken other measures when Faines tried to push past him to the door, such as using soft hand techniques to push Faines in the chest, using chemical agents, or directing Riccardo to use chemical agents (Tr. 34). Salazar acknowledged, however, that the fan facing the door was operating (Tr. 77). He denied that Faines was being “aggressive” towards respondent while acknowledging that Faines was being “actively” resistant by trying to reach the open door to exit the housing area (Tr. 79-80). According to Salazar, when Faines landed on the ground, his face struck the base of the standing fan (Tr. 33). Salazar believed that Faines could have been seriously hurt, because “the head is a fragile part of the body” (Tr. 34-35). However, he acknowledged that Faines declined medical attention and denied any injuries (Tr. 61; Resp. Ex. A at 3). Salazar also acknowledged that Faines never reported that respondent wrapped his hands around his neck (Tr. 61-62; Resp. Ex. A at 3). Salazar was inconsistent as to whether the neck restraint was inadvertent. When initially asked if respondent’s contact with Faines’ neck “could have been accidental or inadvertent,” Salazar said “yes” (Tr. 35). But he later testified that he believed that respondent had “made the decision to grab the…inmate by the neck,” in the course of bringing him to the ground (Tr. 38). There were also inconsistencies between Salazar’s testimony and his initial report. For example, in his “Preliminary Review,” Salazar entered “No” in response to whether there had been “Prohibited Restraint Hold(s)” (Resp. Ex. A at 1). And in the portion of this report subtitled “Accuracy of UOF classification,” he wrote that the video shows that once Grey “slightly opened the housing area door,” Faines tried to exit, and that “[a]t that time, the captain wrapped both of his arms/hands around the upper body of the individual and threw him down to the floor” (Resp. Ex. A at 3-4). Despite these inconsistencies, in the portion of the “Preliminary Review” subtitled “Conclusion,” Salazar wrote, “Captain Russell then employed a prohibited neck hold on the individual then threw him down to the floor, which posed a serious risk of physical injury to the individual.” Salazar further concluded that respondent submitted a false or misleading use of force report (Resp. Ex. A at 6). Respondent’s Use of Force Report Respondent wrote about the incident in his use of force report, which he submitted on the same day as the incident (Pet. Ex. 5). Respondent was assigned to a tour of duty in the “Alpha Supervisor” post. At about 4:32 p.m., while he was conducting a tour of housing area 3 upper, a detainee (later identified as Faines) “aggressively approached” respondent and made several verbal threats, including that if respondent did not get him “the Fuck out of this house now,” Faines would “slap the shit out of [him].” Faines pointed at respondent’s face with his hand about two inches away from respondent’s face, while respondent sat and wrote in the B post logbook. Respondent gave Faines several “direct orders” to step back. Faines “refused all direct order[s].” Riccardo, who was also present, gave Faines orders to step back but Faines did not comply and continued to “aggressively approach” respondent while pointing to respondent’s face and threatening to slap respondent. With Faines continuing to disregard his orders, respondent “attempted to exit the housing area.” While respondent did so, Faines “aggressively advanced to the door,” standing approximately six inches from respondent while continuing “to threaten to assault” respondent. Respondent then gave Faines another “direct order to step back,” while pointing in the direction to which he wanted Faines to move. Faines “remain[ed] ir[]ate” and “continued to refuse all direct orders.” Officer Grey, who was assigned to the A post, tried to open the door so that respondent could leave the area safely. However, “[a]t that exact moment,” Faines “aggressively” attempted to “push past” respondent in an attempt to leave the housing area without authorization. Then, respondent wrote, he “immediately responded by using both my open palms to grab said inmates upper body and push him back into the hou[s]ing area in order to prevent him from exiting the housing area without authorization.” After that, Faines “fell to the floor” but “immediately jumped up to his feet” and continued “advancing” upon respondent. Respondent, who had his back against the door, withdrew chemical agent with his right hand and extended his left hand with his palm open to display “the universal stop sign,” to warn Faines that chemical agent would be dispersed if he did not stop advancing. Respondent was then able to leave the area without further incident (Pet. Ex. 5). In the area of the report that asked him to identify the part(s) of the detainee’s body to which force was applied, respondent wrote, “Upper Body (Shoulder and Back).” Use of Force Witness Reports and Rivera’s Report As respondent’s counsel highlighted, neither Grey nor Riccardo nor Rivera reported that respondent used a neck restraint to force Faines to the ground. In her report, Grey wrote that she was present when Faines asked to leave the housing area and that he put his mattress and belongings in front of the tier gate (or door). When respondent denied Faines’ request, Faines “grew aggressive stepping” up to respondent, who was sitting and writing in the logbook. Riccardo gave Faines commands to back up, which Faines ignored. Then, when respondent tried to leave the housing area, Faines “charged at him” trying to get through the gate and in response, respondent “grasped him with 2 hands and moved him away from [the] door,” “creating space between them.” Grey also noted that both Riccardo and respondent gave Faines orders “to back up and step aside” before employing force (Resp. Ex. B). In his report, Riccardo wrote that Faines asked other detainees if there were drugs in the housing area and was told that there were not. Faines then gathered his belongings and stood near the housing area entry gate, becoming adamant in his demand to move to a different housing area. Respondent arrived on tour and spoke with Faines, who “became irritated and advance[d]” toward respondent as respondent was writing in his logbook. Riccardo ordered Faines to step back. Faines continued to yell and was given verbal orders to return to his cell. Respondent tried to leave the housing area and Faines “ charged toward” the housing area door. To prevent Faines from “causing any physical harm” to himself, respondent “grasped [Faines] with both hands on his upper body and removed [Faines] from the doorway.” Then, “[w]ith ample space to exit,” respondent left the area and Riccardo escorted Faines to his cell (Resp. Ex. C). In the section of the report asking the part(s) of the detainee’s body to which force was applied, Riccardo wrote that force was applied to Faines’ “upper body, Shoulders, and chest” (Resp. Ex. C). Rivera wrote in her August 10, 2024, report that on August 10, 2024, inside of housing area 3 upper, Faines “became disruptive” by “advancing…in an aggressive” way toward respondent and “placing his hands” in respondent’s face. Respondent ordered Faines to step back but Faines refused and tried to push his way out of the housing area. This prompted respondent “to grab” Faines “towards the upper body and push him to the ground to create space” (Resp. Ex. D). Petitioner Proved that Respondent Used an Impermissible Neck Restraint The Department’s Use of Force Directive 5006R-D, effective September 27, 2017, prohibits the use of excessive or unnecessary force (Pet. Ex. 1 at §II(F)). A use of force is broadly defined as “any instance where Staff use their hands or other parts of their body…to restrain, subdue, or compel an Inmate to act or stop acting in a particular way” (Id. at §III). The Directive permits the use of force against a person in custody in limited circumstances, including: “[a]s a last resort,” when “there are no practical alternatives available to prevent physical harm to Staff, visitors, Inmates, or other persons” (Id. at §V(A)(1)); “[a]s a last resort,” when a person in custody “in restraints is still dangerous to oneself and/or others” (Id. at §V(A)(8)); “[t]o prevent or stop the commission of crimes” or “[t]o prevent the destruction of property that raises a safety or security risk” (Id. at §V(A)(3)-(4)); and “[t]o enforce Departmental or Facility rules, policies, regulations, and/or court orders where lesser means have proven ineffective and there is an immediate need for compliance” (Id. at §V(A)(6)) (emphasis in the original). The Directive sets forth various uses of force “in order of least to greatest degree of force,” and states that staff “shall first try to de-escalate and resolve the situation by talking to the Inmate if time and circumstances permit” while also noting that employees “are not obligated to start at the lowest level of force, or to exhaust every lesser level in escalating to an effective level” (Id. at §§VI(A)(1), (B)(1)(f)). However, when using force, staff are required to “always use the minimum amount necessary to stop or control the resistance or threat encountered and it must be proportional to the resistance or threat encountered” (Id. at §II(C)). The Directive stresses the “Inmate’s level of resistance will always determine a Staff Member’s response” and that “Staff shall cease use of all force when control of the Inmate has been established” (Id. at §VI(B)(1)(c)) (emphasis in the original).³ The standard for determining whether the use of physical force toward a detainee is justified is an “objective ‘reasonableness’” standard that considers “all elements of the situation confronting Staff” and “the type and amount of resistance exhibited by the Inmate” (Id. at §VI (B)(1)(b)). While recognizing that “[s]taff decisions must be based on their perceptions during the situation, rather than on analysis after the fact,” the Directive mandates that “the reasonableness of the force must be judged from the perspective of a reasonable Staff Member on the scene at the time of the incident” (Id. at §VI(B)(1)(b)). The Directive sets a higher standard for the use of “high impact force.” It strictly prohibits the use of high impact force, including “[s]trikes or blows to the head, face, groin, neck, kidneys, and spinal column,” “[k]icks,” and “[c]hoke holds, carotid restraint holds, and other neck restraints,” unless a staff member or other person “is in imminent danger of serious bodily injury or death, and where lesser means are impractical or ineffective.” In such a situation, the staff member “may use any necessary means readily available to stop or control” the imminent threat (Id. at §II(G)). The Department does not allege in its charge, nor did it contend at trial, that respondent was prohibited from using any force. But it alleges that respondent’s use of force was excessive because he used a prohibited neck restraint, which was intentional rather than inadvertent, and not justified by the circumstances. I agree. The video shows that respondent initially exhibited remarkable restraint by sitting down and continuing to write in the logbook while engaging with Faines verbally even as the latter approached while agitated and pointing his finger in respondent’s face. Respondent even stretched out his arm toward Riccardo to prevent Riccardo from advancing toward Faines. Thus, as Salazar acknowledged, respondent appeared to be trying to de-escalate the situation (Tr. 76). By doing so, he complied with the mandate of the Directive to use alternatives to force when possible. Just before Grey opened the housing area door and Faines tried to push past respondent to exit, respondent gestured toward Faines and pointed to the back of the housing area. This is consistent with respondent’s statement in his use of force report that he ordered Faines to “step back.” However, the video shows that once Faines tried to push past respondent to exit the housing area, respondent grabbed Faines by the neck and threw him to the floor. This was an excessive and disproportionate use of force because it involved a prohibited neck restraint. The Directive deems neck restraints to be “high impact force” and prohibits staff members from using them except if a staff member or other person “is in imminent danger of serious bodily injury or death, and where lesser means are impractical or ineffective.” These conditions did not apply. As respondent’s counsel highlights (Tr. 52), the Directive does not define a “neck restraint,” while it does, for example, define a “chokehold” and a “carotid restraint hold.”⁴ I was not persuaded by Salazar’s sweeping conclusion that “any touch to the neck” is a “neck restraint” because a neck restraint is a type of use of force, which is defined, in part, as when Department staff use their hands “to restrain, subdue, or compel” a detainee to act or stop acting in a certain way (Pet. Ex. 1 at §III). But I was also not persuaded by counsel’s argument that respondent did not utilize a neck restraint. Respondent’s counsel argues that while respondent touched Faines’ neck in the course of the takedown, it was a very brief, inadvertent contact lasting only two-tenths of a second, and thus did not constitute a neck restraint (Tr. 14, 103-09). In support of his argument, counsel cites Department of Correction v. Larry, OATH Index Nos. 3280/23 & 3289/23 at 14 (Oct. 30, 2023), adopted, Comm’r Dec. (Nov. 20, 2023), in which this tribunal found that the Department had failed to prove that a correction officer used a prohibited neck restraint or chokehold notwithstanding that the correction officer’s arm was “cradling the back” of a detainee’s neck for approximately two seconds as both men fell to the ground. Citing OATH case law, Administrative Law Judge Tiffany Hamilton noted that “[n]ot every use of force involving contact with the neck amounts to a neck restraint or chokehold.” Id. at 13. As respondent’s counsel highlights, the duration of time in Larry is similar to the duration here: the entire takedown took three-tenths of a second, from 4:32:57.357, when respondent grabbed at Faines neck with his left hand, to 4:32:57.657, when respondent released his hold on Faines and Faines fell to the ground. But while respondent’s takedown of Faines is similar in its brevity to the takedown in Larry, the circumstances of the force here differ markedly. As Judge Hamilton noted, in Larry the correction officer struck the left side of the detainee’s face after which both men “grabbed onto one another in a bear hug and were fully engaged in a struggle.” Larry, OATH 3280/23 at 12. The correction officer’s arm cradled the back of the detainee’s neck during the struggle. The “physical contact” during the scuffle was “fluid, with rapid, simultaneous movement as each party attempted to take the other down.” Id. at 14. Other cases cited in Larry are also markedly different from this case because they involve fluid physical struggles between a correction officer and a detainee. See Dep’t of Correction v. Wilson, OATH Index Nos. 117/22, 118/22, 119/22, 349/22, 415/22, & 487/22 at 15 (Mar. 4, 2022), adopted in part, modified on penalty in part, Comm’r Dec. (May 6, 2022), aff’d, NYC Civ. Serv. Comm’n Case Nos. 2022-0388, 2022-0389, 2022-0390, & 2022-0391 (Sept. 28, 2022 & Sept. 30, 2022) (finding that a correction officer who “briefly grabbed” a detainee’s neck as the detainee and officer were falling down the stairs and the detainee was punching and kicking the officer did not engage in a prohibited use of force); Dep’t of Correction v. Venturino, OATH Index No. 1503/21 at 13 (July 1, 2022) (finding that the Department did not prove that a correction officer used an impermissible headlock where there was “a chaotic and quick moving situation with six officers pushing against the inmate and respondent” in which the respondent tried to hold onto the inmate while not falling on the floor and very briefly put his hands “near the inmate’s neck”). In contrast to those cases, here both parties are not attempting “to take the other down” and the use of force was one sided. Respondent and Faines were not engaged in a fluid struggle and Faines was not attempting to push respondent to the ground when respondent grabbed Faines’ neck. Close scrutiny of the video dispels any notion that respondent inadvertently touched Faines’ neck. It is true, as respondent contends, that respondent initially wrapped his left arm around Faines’ back and his right arm around Faines’ torso. But what happened next is critical. Respondent grabbed at the back of Faines’ neck with his left hand to pull him down to the ground away from the door. Respondent then put his right hand up to Faines’ face, pressing at or near Faines’ neck. Noting that as respondent pulled Faines downwards, Faines was higher up than respondent, respondent’s counsel contends that there was a shift in weight (Tr. 107). But here, unlike in Larry and the cases cited therein, Faines was not grappling with respondent when respondent pulled him by the neck; thus, there is no basis to believe anything other than that respondent deliberately grabbed at Faines’ neck and facial area to propel him down to the ground. Although Salazar was inconsistent in his testimony as to whether or not the neck restraint was inadvertent, the video evidence is controlling. Grey and Riccardo did not state in their use of force witness reports that respondent grabbed Faines by the neck and threw him to the ground. But that is not dispositive, because the video shows that that is precisely what respondent did. Moreover, Grey’s and Riccardo’s reports minimize the force used by respondent to such a degree that they are incredible: Grey wrote that respondent “grasped” Faines with two hands and “moved him away” from the door and Riccardo wrote that respondent “grasped” Faines “with both hands on his upper body” and “removed” him from the doorway. These descriptions in no way accurately reflect respondent’s actions. Respondent’s deliberate actions constituted an impermissible neck restraint under the Directive, which prohibits the use of high impact force, including neck restraints, except when necessary to defend against imminent danger of serious bodily injury or death, and when lesser means are impractical or ineffective. These circumstances were not present here. The immediate action precipitating respondent’s use of the neck restraint was Faines’ taking one step forward to attempt to move past respondent to exit the housing area through the open door. This does not establish that respondent was in imminent danger of serious bodily injury or death. At the most, it was “active resistance,” which under the Directive permits a correction officer to use, if necessary, “a combination of body holds and soft hand techniques to reassert control.” As Salazar noted, a neck restraint is not a soft hand technique (Tr. 88). And a detainee’s “active resistance” to orders does not permit the use of a neck restraint, which is high-impact force prohibited except in exigent circumstances. There is no evidence on this record that respondent was in imminent danger of death or serious bodily injury or that lesser means were impractical or ineffective. While respondent wrote in his report that Faines threatened “to assault” respondent, respondent did not testify and I did not credit his hearsay statement. Moreover, while both Riccardo and Grey reported that Faines “charged” at respondent to leave the housing area, this was contradicted by the video evidence. The video shows that Faines did not charge at respondent but took one step forward in an attempt to move past respondent and exit the housing area. And even if Faines had verbally threatened respondent, there were two other correction officers present who could have assisted respondent: Grey was on the other side of the door and Riccardo was just a few feet behind respondent. Respondent could have also used soft hand techniques on Faines’ upper body to create distance between Faines and the door and ordered Grey and Riccardo to assist in securing Faines. In sum, Faines’ attempt to move past respondent to exit the housing area did not justify respondent grabbing Faines by the head and neck to throw him to the ground. Respondent’s use of a neck restraint was unjustified and excessive. See Dep’t of Correction v. Carnes, OATH Index No. 2067/24 at 15 (Feb. 16, 2024) (finding that a correction officer used unnecessary and excessive force when he forcibly pulled and swung a rear-cuffed detainee by the neck, causing the detainee’s upper body and face to hit a metal partition and then pulled the detainee backward, causing his upper body to hit a metal food slot); Dep’t of Correction v. Lockamy, OATH Index No. 1029/22 at 7 (Apr. 4, 2022), adopted, Comm’r Dec. (May 3, 2022) (rejecting a correction officer’s claim that he inadvertently placed his hands on a detainee’s head and neck during a struggle where the video evidence showed that the officer deliberately pushed his left hand against the detainee’s jaw and neck area, twisting the detainee’s neck to the side and pressing the detainee’s cheek to the floor for two seconds, and then immediately extended his left forearm against the detainee’s neck to push his head back down to the floor); Dep’t of Correction v. Antoine, OATH Index No. 873/21 at 29-30 (June 16, 2021), adopted, Comm’r Dec. (Oct. 19, 2021) (finding that a correction officer used a prohibited neck restraint during a struggle by grabbing a detainee who was already restrained in rear cuffs by the neck and ponytail to keep him from exiting an exam room and then bashed the detainee’s head into a metal cabinet and the ground). This charge is sustained. Petitioner Proved that Respondent Submitted a False, Misleading, Inaccurate and/or Incomplete Report about the Use of Force Incident Petitioner charges that respondent submitted a false, misleading, inaccurate and/or incomplete use of force report by failing to report that he “placed his hands around” Faines’ “neck and upper back area” (ALJ Ex. 1). The Directive requires that staff members who employ or witness a use of force “prepare a written report concerning the incident based on their own observations and personal knowledge…” (Pet. Ex. 1 at §VI(C)(5)(b)(i)). The report must include: “[a] detailed description of the Use of Force Incident,” including the “type and level of force used by the Staff Member” (Id. at §VI(C)(5)(c)(iii)(G)). The Directive prohibits staff from “deliberately submitting a false and/or misleading report regarding a Use of Force incident” and petitioner’s rules also prohibit the making of false official statements and false reports (Id. at §II(J); Pet. Ex. 2 at §§3.20.030(5), 4.30.020). To prove a false statement charge, the Department must establish “that the underlying incident occurred and that respondents’ statements materially deviated from the actual events.” Dep’t of Correction v. Dominguez, OATH Index Nos. 615/19, 731/19, & 770/19 at 16 (May 21, 2019), aff’d, NYC Civ. Serv. Comm’n Case Nos. 2019-0824, 2019-0825 (Feb. 5, 2020) (finding that report that omitted altercation, but included events leading up to it and after it, was misleading). Material omissions can establish a false statement. See, e.g., Lockamy, OATH 1029/22 at 17 (finding that use of force report was false or misleading where correction officer utilized a prohibited neck restraint and chokehold on a detainee but in his report noted that he applied force to the detainee’s “upper body, arms, and hands,” omitting any reference to the detainee’s neck or head); Wilson, OATH 117/22 at 19 (finding that use of force report was false or misleading where correction officer noted that force was applied to the detainee’s left and right arms and wrists but did not mention grabbing the detainee’s neck or pulling his hair); Dep’t of Correction v. Cantelmo, OATH Index No. 2562/17 at 4 (Oct. 12, 2017), adopted, Comm’r Dec. (Nov. 27, 2017), aff’d, NYC Civ. Serv. Comm’n Case No. 2018-0135 (July 23, 2018) (false statement charges proven where correction officer failed to state in his report and Mayoral Executive Order 16 (“MEO-16″) interview that captain struck inmate in the face). The use of imprecise language should not be deemed to be false or misleading where there was no intent to conceal or deceive. See Dep’t of Correction v. Estevez, OATH Index Nos. 1568/21 & 1569/21 at 10 (Nov. 3, 2021) (not all inaccuracies rise to the level of a sanctionable false statement, “absent intent to conceal or deceive”). Here, petitioner established that respondent applied force to respondent’s neck and facial area to throw him to the ground. In his use of force report, respondent acknowledged applying force to Faines’ upper body (“shoulder and back”), but made no mention of applying force to Faines’ neck or head. Instead, respondent reported that when Faines “aggressively” attempted to push past him to leave the housing area, he “immediately responded by using both my open palms to grab said inmates upper body and push him back into the hou[s]ing area in order to prevent him from exiting the housing area without authorization.” This in no way accurately reflects what happened. While respondent reported applying force to Faines’ “upper body” and “back,” he neglected to state that he grabbed Faines by the neck or face. This is a material omission. Respondent’s counsel notes, accurately, that respondent is charged with failing to report that he “placed his hands around” Faines’ “neck and upper back area” (Tr. 110). Counsel contends that respondent did not place his hands “around” Faines’ neck. However, the video shows that respondent had at least one and maybe both of his hands on Faines’ neck. Respondent grabbed Faines’ neck with his left hand and used his right hand to press against the left side of Faines’ head, either on Faines’ neck or on the jaw directly above his neck. Thus, respondent grabbed Faines’ head with both his hands, placing both hands in the vicinity of Faines’ neck. Respondent’s counsel also contends that because the incident was so quick, and because respondent’s contact with Faines’ neck was “incidental” rather than deliberate, respondent’s failure to mention the neck restraint was inadvertent and his report should not be deemed to be false or misleading (Tr. 109-10). Counsel also notes, as Salazar testified, that respondent did not view the video before writing his use of force report (Tr. 86, 109). These arguments are unavailing. As already discussed, respondent’s actions in grabbing Faines by the neck and facial area were deliberate, not inadvertent. And while the use of force was extremely brief, it does not follow that respondent would forget deliberately grabbing Faines’ neck and face while writing a report the same day. Rather, it follows that respondent “deliberately omitted” this “key” detail “in an effort to mislead and to minimize his own actions.” Wilson, OATH 117/22 at 19; see also Lockamy, OATH 1029/22 at 17 (respondent’s use of the term “upper body control holds” and his omission of any reference to chokeholds or neck restraints was “a deliberate attempt to minimize his action and conceal a prohibited use of force in a contemporaneous report”). This charge is sustained as to the allegation that respondent submitted a false, misleading, inaccurate and/or incomplete report regarding the use of force. FINDINGS AND CONCLUSIONS Petitioner proved that respondent used excessive force against detainee Faines on August 10, 2024, and submitted a false or misleading use of force report about the incident. RECOMMENDATION Upon making these findings, I requested and reviewed respondent’s disciplinary abstract. It shows that respondent has been a member of the Department since September 2013 and was promoted in September 2018. He has no record of previous discipline, other than a two-day command discipline imposed in January 2024 for rule violations relating to inefficient performance. Petitioner seeks a 60-day suspension for the charged misconduct, 30 days for the use of force and 30 days for the false statement (Tr. 117). Petitioner asserts that these penalties are appropriate under sections 2 and 4 of the Disciplinary Guidelines for Use of Force Incidents (“Guidelines”) (Pet. Ex. 3).⁵ These guidelines were developed under a consent judgment and remedial order entered in Nunez v. City of New York, 11 Civ. 5845 (LTS)(JCF). Respondent’s counsel contends that the charges should be dismissed, but argues in the alternative that under section 4 of the Guidelines, the minimum penalty of ten days should be imposed for the use of force (Tr. 110). Section 4 of the Guidelines provides for a minimum penalty of ten vacation or suspension days for the first occurrence of a “substantive violation” (Pet. Ex. 3 at 4-5). A “substantive violation” is defined to include a respondent’s impermissible use of parts of their own body “to make physical contact with an inmate” (Id. at 4). Section 2 of the Guidelines provides for a minimum penalty of a 30-day unpaid suspension for the first occurrence of deliberately providing false information in a use of force report (Id. at 3). While the Guidelines set forth a range of penalties that the Department must request in use of force cases, they provide for deviation from the penalty range based upon aggravating and mitigating factors (Id. at 1-2). The Department did not provide a basis for its elevated penalty request for the use of force other than stating that the captain, as a supervisor, is “held to a higher standard” as a “role model for officers” (Tr. 117). For the following reasons, I conclude that a penalty of 50 days suspension is appropriate, but recommend a 49-day suspension consistent with the Department’s policy toward suspension of captains. As an initial matter, the Guidelines emphasize that the Department “operates under the City’s disciplinary framework of progressive discipline,” which “acknowledges that correcting behavior should, in most instances, start with the least severe penalty necessary to correct the misconduct of an employee. Thereafter, penalties for additional misconduct should increase in severity consistent with the misconduct” (Pet. Ex. 3 at 1 (“Preamble”)). The focus on progressive discipline is consistent with this tribunal’s case law, which “aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct.” See, e.g., Dep’t of Correction v. James, OATH Index Nos. 971/22 & 972/22 at 19 (Apr. 11, 2022), adopted, Comm’r Dec. (June 24, 2022) (citation omitted). Respondent has been employed by the Department for over ten years and apart from the two-day command discipline, has no disciplinary record. The Guidelines provide that factors to be considered in assessing an appropriate penalty for a substantive use of force include the respondent’s overall record, whether there is falsity or deception, the severity of any injuries, and the impact on the safety of other staff and inmates (Pet. Ex. 3 at §4). Consideration of these factors weighs against imposition of the minimum ten-day penalty urged by respondent’s counsel. While Faines denied any injuries, the lack of injury is purely fortuitous as respondent employed high-impact force culminating in Faines landing on the ground with his head striking the base of a standing fan. The brief nature of the neck restraint neither diminishes its gravity nor justifies its use. Additionally, respondent provided an extremely misleading use of force report. He omitted any reference to grabbing Faines by the neck or head and propelling him to the ground and instead described using his “open palms” to “grab” Faines and “push him” back to the housing area, where Faines “fell” to the ground. Respondent’s status as a captain should also be given some weight. See Dep’t of Correction v. Blackett, OATH Index No. 274/21 at 21 (July 13, 2021), adopted, Comm’r Dec. (Sept. 7, 2021) (noting in a use of force case involving an officer who was an investigator within the Investigations Division, “Like captains, investigators should know better”); Dep’t of Correction v. Rothwell, OATH Index No. 1963/17 at 13 (Nov. 3, 2017), modified on penalty, Comm’r Dec. (Jan. 8, 2018) (sustaining a use of force charge against a captain, noting, “As captain, respondent has a high duty to maintain good order and discipline”). However, while the ten-day suspension sought by respondent for the substantive use of force violation is insufficient, a 30-day suspension fails to consider respondent’s exemplary record: he has been employed by the Department for over ten years and has virtually no disciplinary record. This tribunal has considered both an employee’s disciplinary record and their length of service in assessing an appropriate penalty. Compare Blackett, OATH 274/21 at 20-21 (recommending a 50-day suspension for an officer with seven years tenure and no prior discipline who punched a detainee in the upper torso and briefly used a headlock while bringing the detainee to the ground and then lied about it in his MEO-16 interview), with James, OATH 971/22 at 18-21 (recommending a 60-day suspension for officer who used an impermissible neck restraint to bring a detainee to the ground and submitted a false and misleading use of force report where the officer had seven years tenure at the time of the incident and two instances of previous discipline involving excessive use of force and use of force reporting). Considering the totality of the incident, the factors set forth in the Guidelines, and this tribunal’s case law, a 20-day suspension penalty for respondent’s use of an impermissible neck restraint is appropriate to both punish respondent for his misconduct and deter him and others from similar actions. For the false reporting charge, a 30-day suspension without pay is warranted. This is the minimum penalty under the Guidelines and I do not see sufficient reason for a downward departure. Respondent is a captain, with a lengthy tenure, and he should be aware of the importance of accurately reporting uses of force with detainees. See Rothwell, 1963/17 at 13 (noting captain’s responsibility “to provide complete and accurate reports and statements”). In sum, a 50-day suspension without pay is appropriate. However, while petitioner did not address this in its penalty request, the Department has stated “there is a requirement that Captains are to be suspended in seven (7) day increments.” Dep’t of Correction v. Neely, OATH Index No. 2166/21 (Jan. 27, 2022), adopted in part, rejected in part, modified on penalty, Comm’r Dec. at 19 (July 7, 2022) (Commissioner “elected to issue a penalty” of 28 days against a captain, rather than the 30 days recommended by this tribunal); see also Rothwell, OATH 1963/17, Comm’r Dec. (modifying recommended penalty against captain from 50 suspension days to 49 suspension days in light of Departmental Memorandum 01/99, which “requires that suspension of all captains be imposed in 7-day increments”). Accordingly, for the proven misconduct, respondent should be suspended for 49 days. Dated: December 19, 2024