Common sense lives? Grand jury declines to indict former NYPD officer in first case under chokehold ban

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ROCKAWAY BEACH, NEW YORK –  A grand jury declined to indict former NYPD Officer David Afanador, who was accused of using an illegal chokehold during an arrest last year in Queens, marking a victory for law enforcement in a test over a new law criminalizing chokeholds.

A Queens grand jury refused to indict Afanador,39, who was captured on cellphone video putting his arm around a black man’s neck on a Rockaway Beach Boardwalk in June 2020, shortly after the death of George Floyd at the hands of former Minneapolis officer Derek Chauvin.

New York City prosecutors filed criminal charges against Afanador on June 23, 2020, claiming he used an unlawful chokehold. He was the first officer charged under the new law.

Afanador was charged with strangulation and attempted strangulation.

Just nine days before the incident on the boardwalk, New York passed the use of chokeholds by police as part of a wider police reform package. The knee-jerk legislation has been criticized as leading to police hesitance to do their jobs and contributing to a spiking violent crime rate.

Cellphone video captured Afanador using an apparent chokehold while arresting Ricky Bellevue on the boardwalk, causing Bellevue to lose consciousness.

Prior to the arrest, police said Bellevue threatened officers and reached into a nearby garbage can to pull something out while asking an officer if he was scared.

 

Commenting at the time of the former NYPD officer’s arrest, District Attorney Melinda Katz said that her office has “zero tolerance for police misconduct”:

“There must be zero tolerance for police misconduct. The Queens District Attorney’s Office is aware of the incident in Far Rockaway today. We take these allegations very seriously and an active investigation is underway.”

Bellevue told local media that he struggles with mental illness and that the condition had worsened since the incident. However, police see if different reason for his actions, exemplified by the later arrests of Bellevue.

According to police, Bellevue was arrested twice in the month following the incident. In July 2020, he was arrested for a slashing and attempted robbery of a victim, and another time for robbing a 16-year-old girl.

When a video of Bellevue’s arrest on the boardwalk was released, protesters led by civil rights leader Rev. Kevin McCall called for justice:

“We are taking our fight to Washington, to the Justice Department, calling on the Justice Department to bring on charges that this young man’s civil rights were violated.”

Following the grand jury’s refusal to indict Afanador, DA Katz said she would move for the secret grand jury proceedings to be unsealed in the interest of transparency:

“While the law prohibits me from discussing the proceedings that took place in front of the grand jury, in the interest of transparency I am moving to have the minutes of the grand jury hearings unsealed.”

Stephen Worth, Afanador’s attorney, said his client’s arrest was motivated by the George Floyd killing and the public pressure to hold police accountable for alleged misconduct that followed:

“It’s become fashionable for prosecutors to make summary arrests of police officers without a full and thorough investigation.

“The concept of due process seems to go out the window.”

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New York City police unions file lawsuit against the city’s ban on chokeholds, similar uses of force

August 7, 2020

 

NEW YORK, N.Y.- Police in New York City are getting tired of Mayor Bill de Blasio’s shtick. CBS New York is reporting that a coalition of 18 police unions in the city are joining together to overturn the city’s controversial ban on chokeholds. De Blasio of course does not care, according to the station.

The unions, consisting of New York City police unions, MTA police, Port Authority, court officers and investigators assigned to the district attorney’s office are all joining together to file a suit over de Blasio’s mandate.

Hank Sheinkopf, a spokesman for the police union said:

“No questions, this is political grandstanding by the mayor and the City Council,” 

Sheinkopf said that the ban was a “misplaced attempt by officials” to suck up to anti-police protesters.

It should be noted that the coalition of police unions doesn’t oppose the chokehold part of the regulation put in place by de Blasio, since those are already banned by state law. However, under the city’s ordinance, police are not permitted to sit, stand, or kneel on a suspect’s stomach or back—in other words, the diaphragm.

Sheinkopf said:

“This presumes when a cop goes to lock somebody up, the person says, ‘Oh yes. Please take me away.’ That’s ridiculous and the result is that police officers can effectively be arrested for doing their lawful jobs. That’s wrong and crazy,” 

The Wall Street Journal said that the law, which was signed by de Blasio in July, made it a misdemeanor punishable by up to a year in prison for using a chokehold or chest compression. This came in response to the death of George Floyd in Minneapolis, widely blamed on Minneapolis officer Derek Gauvin kneeling on Floyds’ neck.

Body camera footage released this week however, showed that Floyd was uncooperative, appeared to be on some type of substance, and was complaining about not being able to breathe long before the incident with Gauvin.

 

The lawsuit was filed in New York state court on August 5th, in which the suit claims the ban in the city:

“[it] goes beyond a law governing police misconduct”

It goes on to say:

“[it] threatens police officers with fines and imprisonment for doing their jobs in good faith with no intent to harm a suspect.”

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When the bill was signed last month, not a single member of the New York Police Department was present, with NYPD Commissioner Dermot Shea saying:

 “I think that we have gone too far. I think we have crossed the tipping point on many levels in terms of taking tools away from the police.”

New York Chief of Department Terence Monahan said on July 16:

“I’ve spoken to all the district attorneys in the counties. They all don’t think they would be, ever be able to prosecute based on that portion, on the diaphragm,” 

CBS New York’s Marcia Kramer asked de Blasio if he agreed with the assessment of the NYPD union and officials from the department.

de Blasio said:

“I have not seen the lawsuit. I’m not speaking on a legal matter,” 

He continued

“The NYPD has raised concerns, for sure, about that legislation and it was important to allow those concerns to be aired. But in terms of how we follow through on it now, it is the law. Everyone needs to follow through on it.”

The move by the city council was just another attempt by New York politicians to “handcuff” NYPD cops, the first coming when the city’s undercover crime suppression unit was disbanded. Since that time, crime has exploded in the city.

City Councilman Rory Lancman, a Democrat who represents Queens, and who wrote the legislation, said that the unions were fighting against criminal justice reform and was confident the law would withstand legal scrutiny.

A spokesman for the New York City Law Department, Nick Paolucci said in a statement that that agency was “reviewing the complaint.”

The suit notes that a recent update to New York’s penal code which banned chokeholds, should hold forth over any city law on the same issue. In the case of the state law, it applies only when such use of a chokehold causes serious injury or death. The city’s ban outlaws such use of force outright, as well as the aforementioned ban that expands on that.

The lawsuit noted that the law has already had a “chilling effect,” in part discouraging police officers from doing their jobs out of fear of being prosecuted. In addition, police chiefs and sheriffs in neighboring counties, according to the suit, have told their officers to avoid any type of law enforcement activities in the Big Apple out of fear of them being prosecuted.

Sheinkopf said:

“The mayor and City Council took a big gamble with this law,” 

He continued:

“It was pure politics.”

The lawsuit is asking for a stay on implementation of the law, and also to find it both invalid and unenforceable.

 

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