Alleged NYPD victim: 'The more I talked, the worse that chokehold got'

NEW YORK – “It could have been me,” Angel Martinez thought when he watched Eric Garner utter his now-famous final words.

"When I really think about it, it makes me cry," he said, "because I've been in this situation and I know the fear that he must have felt, the not knowing, to not know what this is happening to me."

Two years ago, Martinez was on his way home with a friend when he said two officers approached him and started patting him down with no explanation. When Martinez objected, he said things escalated. His face was slammed into a parked car, then onto the sidewalk.

“The chokehold started getting tighter and tighter and I'm trying to tell them I'm not resisting,” he recalled. “I ws trying to say to the best of my abilities, trying to get it out 'I'm not resisting. I'm choking, I can't breathe.' I'm trying to tell them I can't breathe.”

While on the ground, he was also punched, Martinez said.

“The more I talked …the more he just put pressure on. The more he tensed up, his muscles just kept getting tighter and tighter around my neck,” Martinez said. “And it seemed the more I talked, the worse that chokehold got.”

The New York Police Department banned the use of chokeholds more than 20 years ago after 21-year-old Federico Pereira of Queens was punched, kicked and choked to death by police in 1991. 

The medical examiner said Pereira died from "traumatic asphyxia."

Five officers were indicted, but charges were dropped against four of them and the fifth was acquitted.

The case spurred protests, intensified by images of riots erupting in Los Angeles over the beating of Rodney King.

Shortly after, in 1993, NYPD Commissioner Ray Kelly announced that chokeholds were unnecessary and potentially lethal. Police officers would no longer use them – no exception.

But the practice remains and the NYPD came under fire in July when video surfaced of officers restraining Eric Garner when he was arrested for selling untaxed cigarettes.

As a direct result of Garner's death, the New York's Civilian Complaint Review Board, an independent agency that reviews police misconduct, released a report in October on chokehold complaints dating back to 2009. 

Mayor Bill de Blasio named attorney Richard Emery, a longtime critic of the CCRB, as its chairman, coincidentally on the same day Garner died.

“The Civilian Complaint Review Board has this unique position of being the repository of 7,000 complaints per year of interactions between citizens and police officers,” Emery said. “No one else has that data. No one else has that information. And to the extent it would reveal anything about the use of chokeholds, it was important to mine that data.”

The CCRB has received an average of nearly 200 chokehold complaints a year since 2001. However, in recent years, less than 1 percent of chokehold claims have been substantiated. The reason, Emery says, is that the rules have been watered down.

NYPD policy says a chokehold includes “any pressure to the neck or throat or windpipe that may prevent or hinder breathing or reduce intake of air.”

Yet during the past decade, police administration judges have made unwritten and dramatic changes to the rule, which have left officers unchecked, Emery said.

“They actually ruled that in order for chokeholds to be a violation, there had to be actual interference with breathing, and the police officer had to intend to choke the person," Emery explained. “And as a practical matter that meant that the CCRB and the prosecutors in the police department were no longer charging chokeholds under the rule, but they were charging under this new standard that had been adopted in the trial bureau, which was much more forgiving of police officer's activities.”

A confusing definition leaves investigators either underreporting or misclassifying chokeholds. The result: NYPD officers are using more chokeholds without being disciplined.

The new report could help alleviate the problem, Emery said, by helping to understand patterns and identify offenders.

“No individual officer need be accused of engaging in chokehold activity in order to identify that officer and properly retrain him or her so that it won't happen in the future,” he said.

Martinez said his 2012 encounter was an extreme version of the "stop-and-frisk" that he’s repeatedly experienced at the hands of police. In this controversial tactic, police stop, question and sometimes even search people on the street if they believe them  to be armed and dangerous. In 2012, blacks and Latinos were the targets of 84 percent of the 533,000 stop-and-frisks conducted by the NYPD, according to the Center for Constitutional Rights. This year, a federal judge declared the practice unconstitutional.

In addition to filing a complaint with the CCRB following the incident, Martinez also filed a federal civil rights lawsuit.

“To me, they beat me up. I wasn't going to accept that. This wasn't no routine stop,” he said. “I'm going to try to talk for the people that can't talk.”