When the independent agency investigating abuse by New York police determined that an officer had held him in a banned chokehold and shocked him with a Taser 13 times, Tomás Medina thought he would get justice at last.
Seven months earlier, Medina had been playing music with friends outside the car dealership where he worked, in the Inwood neighborhood of Manhattan, when New York Police Department detective Fabio Nunez, responding to a noise complaint, demanded to see Medina’s identification. When he argued and tried to walk away, Nunez escalated the encounter, which was caught on surveillance camera and police body camera. The video mirrored that of the 2014 killing of Eric Garner by officer Daniel Pantaleo and sparked an outcry about the NYPD’s continued use of chokeholds, a practice that has been prohibited for decades but remains widespread.
While the footage leaves little doubt about what transpired between Medina and Nunez in July 2018, department officials quickly sided with the officer. A day after the incident, NYPD Chief of Department Terence Monahan defended Nunez’s actions, saying that he “used the necessary force to take that individual into custody.” The NYPD closed its internal use-of-force investigation without taking any action. But the Civilian Complaint Review Board, the body tasked with investigating civilian allegations of some types of police abuse, including excessive force, substantiated Medina’s accusations of misconduct. It was a relatively rare outcome for an agency that reviewed nearly 5,000 allegations last year, substantiating only about 15 percent of them.
Each complaint filed with the CCRB can include multiple allegations, and the board considers a complaint substantiated if at least one allegation within it is proven to have happened and to have been improper, based on the NYPD Patrol Guide and applicable laws. In 2019, 24 percent of fully investigated complaints were substantiated. But the CCRB classifies many allegations it reviews as “exonerated,” meaning that the reported incident did happen but was not improper, or “unsubstantiated,” meaning that there was not enough evidence to determine whether an officer committed misconduct.
The video of his encounter with Nunez went viral, and Medina drew some comfort from knowing that people could watch what had happened and see for themselves that he had done nothing wrong, he told me. The CCRB ruling, however, gave him hope that a measure of accountability would follow. “I felt better, like my case was being listened to,” he told me in an interview, speaking in Spanish. “I thought they would fire him.”
That ruling was two years ago this week, and Nunez is yet to face any consequences for his conduct. The NYPD has not scheduled an administrative trial against him or issued as much as a reprimand against him. He is still patrolling the same streets, where he has received additional complaints, including another substantiated allegation that he used a chokehold just two months after the incident with Medina.
During his two decades with the department, Nunez has been the subject of 46 CCRB allegations stemming from 16 different incidents. Thirty-two of those involved allegations of excessive or unnecessary force, including 19 that were substantiated, according to a database of officer disciplinary records that was made public by the New York Civil Liberties Union. Before the incident involving Medina, Nunez was cited in at least five civil lawsuits involving excessive force or false arrest, which the city settled for a total of at least $220,000, according to a different database of officer misconduct. (These settlements usually do not include an admission of liability.) Nunez has also earned a spot on a Manhattan district attorney list of officers with credibility issues for providing false testimony.
Jessica McRorie, a spokesperson for the NYPD, did not answer questions about Nunez’s record and the delay in prosecuting him over the incident with Medina but wrote in an email to The Intercept, “The discipline process is ongoing. A trial date is not scheduled at this time.” The mayor’s office did not respond to a request for comment.
Medina’s ordeal and his stalled quest for justice underscore decades-old problems with the NYPD’s disciplinary process, which is crippled by chronic delays, a lack of transparency, and the department’s reluctance to discipline officers. For years, communities on the receiving end of police abuse and their advocates have denounced the culture of impunity that the system has fostered. In January, New York Mayor Bill de Blasio announced a new “disciplinary matrix” for the NYPD. The document was the result of a yearslong effort to bring some transparency to the discipline process, which gained momentum following the George Floyd protests last summer. The matrix details consequences for specific instances of misconduct, for instance recommending termination for officers found to have used chokeholds, although it leaves room for mitigating circumstances. While the mayor has hailed the new NYPD matrix as substantial progress, its recommendations are not binding, and the police commissioner retains the final word on what disciplinary measures, if any, to mete out.
Photo: Francisco Bravo for The Intercept
That’s hardly good enough for critics, who argue that there can be no accountability until police discipline is removed from the control of the department altogether and assigned to an independent arbiter. In order to do that, lawmakers would first need to repeal a decades-old state law that limits independent oversight of police discipline — a measure advocates have been pushing for, including at a city council hearing last week. City officials have pushed back against that prospect and asked instead that the new discipline matrix be given the time to work.
Cases like Nunez’s will now test the effectiveness of the matrix, which is supposed to retroactively apply to any outstanding disciplinary processes. Medina and his attorneys have called on the department to swiftly schedule a trial and to stick to the matrix’s recommended punishment, but so far, the NYPD has refused to say whether it plans to do so. “Policymakers are trying to make changes to remedy the situation, but ultimately, when individual officers are not actually held accountable, all of these policies don’t really add up to much,” said Molly Griffard, a legal fellow with the Legal Aid Society’s Cop Accountability Project, who represents Medina. “The NYPD has shown that it is just not capable of policing itself. We have a department with a widespread, rampant culture of impunity. To actually hold police officers accountable, you need to get NYPD discipline out of the NYPD.”
Medina, who has filed an ongoing federal civil rights lawsuit against Nunez and the city, was angered to learn of all the abuse allegations against Nunez that went unaddressed before their encounter. He also fears that unless the officer faces consequences, there will be more. Once, he told me, he saw Nunez drive by in his patrol car. The two exchanged looks, but no words. He remains nervous about running into him. “They have not done anything about him,” Medina said. “He might behave the same way with somebody else as he did with me. He might even kill someone.”
A Culture of Impunity
Medina’s case highlights the frustrating limitations of the recourse process currently available to New Yorkers who have become victims of police abuse, a process that is slow, riddled with bureaucracy, and rendered largely futile by the fact that it is ultimately up to police to hold their own accountable. “Ultimately, the NYPD has authority over NYPD discipline,” said Griffard. “They can do what they want.”
The CCRB is the largest civilian oversight agency in the country, employing more than 200 staff, including more than 100 investigators. It has the authority to investigate civilian complaints involving force, abuse of authority, discourtesy, and offensive language, and has recently clarified its jurisdiction to include investigating officers for sexual misconduct and for false statements made on official paperwork or in official proceedings. The board is also currently in the middle of a fraught legal battle between city officials and police unions over the public disclosure of officers’ disciplinary records, which state legislators voted to make public when they repealed a controversial law known as “50-a” in the aftermath of the Floyd protests. CCRB records offer an unprecedented look at the extent of NYPD abuse over decades, and their release could expose enormous amounts of evidence and testimony that the board has so far been bound to keep under wraps.
Photo: Francisco Bravo for The Intercept
The CCRB, however, is not empowered to deliver what New Yorkers abused by police most want: justice and accountability. When the board substantiates an allegation, it can recommend disciplining measures for the officers involved. In the most severe cases, attorneys with the CCRB’s Administrative Prosecution Unit can also take those officers to trial before an administrative judge, with punishments that can range from loss of vacation days to termination. But the NYPD commissioner maintains the final say over that punishment, and the department has regularly downgraded CCRB discipline recommendations. Sometimes, the NYPD can also take over a case from CCRB prosecutors and assign it to the NYPD’s own Department Advocate’s Office instead, even as that office’s primary responsibility is over misconduct allegations that are raised internally or fall outside the jurisdiction of the board. The NYPD retains the right to prosecute a case internally when it determines that a CCRB prosecution would be “detrimental to the Police Department’s disciplinary process” or when “the interests of justice would not be served,” according to the memorandum of understanding that outlines the process.
In practice, that means NYPD officers with substantiated complaints of abuse can be prosecuted by other NYPD officers in administrative trials held at the NYPD’s headquarters, over which the NYPD commissioner has the last word.
That’s exactly what happened with Nunez. Initially, a CCRB prosecutor was assigned to the case, but then the DAO took over, and Medina and his attorneys have received no updates since then. The CCRB did not respond to a request for comment.
“We’re just hitting dead ends,” said Griffard. While there are guidelines detailing how CCRB administrative prosecutions work, and while the NYPD is required to explain its decision to take over a case to the CCRB, the police department is not required to justify that decision publicly or to the person who filed the complaint. That secrecy has left people like Medina in the dark, sometimes for years, about what was happening with their complaint and why.
“Tomás Medina’s story is a perfect example. This horrible thing happened to him, he filed a complaint, and the allegations were substantiated, and two years later, that officer who brutally assaulted him and has assaulted others is still walking around with a badge and a gun,” said Griffard. “It’s understandable that a lot of people don’t have much confidence in the NYPD disciplinary system, including the CCRB process, because it just doesn’t lead to tangible results for so many people.”
“It’s understandable that a lot of people don’t have much confidence in the NYPD disciplinary system, including the CCRB process, because it just doesn’t lead to tangible results for so many people.”
Following the Floyd protests, city and state lawmakers also tried to strengthen prohibitions against chokeholds. The NYPD patrol guide has unequivocally prohibited the practice since the 1990s, but the department retains the right to review each case to determine whether specific circumstances justified the measure, making the ban largely moot. Following the killing of Garner, the CCRB issued a report which found that the use of chokeholds was increasing despite the prohibition and that the department “failed to enforce the clear mandate of the Patrol Guide chokehold rule.”
After Minneapolis police officer Derek Chauvin killed Floyd by kneeling on his neck for more than eight minutes last May, and as outrage resurfaced in New York over the yearslong process to hold Pantaleo accountable for Garner’s killing, state legislators voted to ban chokeholds, making them a felony in more severe cases. The New York City Council passed — and then tried to walk back — a law making police chokeholds a misdemeanor. Police have forcefully pushed back against the new restrictions, but advocates are also skeptical and have noted that adding more laws to the books doesn’t do much if prosecutors don’t enforce them.
Medina’s attorneys stressed that while the chokehold Nunez used on him was clearly prohibited, the officer also tased Medina 13 times. That deployment of force is far greater than what might have been necessary to apprehend someone, and they say it amounts to a punitive measure and inhumane treatment. Medina was arrested that day and charged with assault on a police officer as well as resisting arrest and disorderly conduct, but all charges were ultimately dismissed.
The attorneys also noted that Nunez was a neighborhood coordination officer at the time of the assault, part of a “community policing” approach that was introduced following Garner’s killing and that the mayor has repeatedly touted as a solution to the city’s policing troubles, including after last summer’s protests. “It’s really telling that we’re still hearing a push for more community policing under different names coming from the de Blasio administration,” said Griffard. “It clearly hasn’t succeeded when we have officers like detective Nunez, who was working as a neighborhood coordination officer, escalate a noise issue into a brutal, potentially deadly assault.”
Ishita Kala, an associate at the law firm Covington & Burling, who also represented Medina, said that “it’s been very disillusioning for him to see how long this process has been drawn out and the lack of justice that results from it,” referring to the CCRB investigation. “What happened to him was truly a brutal assault, and he deserves justice.”
Most often, that justice comes in the forms of settlements paid out by the city — but little action against the officers themselves. According to Medina’s federal complaint, NYPD officers have been accused of using chokeholds in at least 40 federal lawsuits between 2015 and 2018, and the city has settled at least 30 of those at a cost of more than $1.2 million. Because these settlements are not public, the real figure is likely much greater.
Medina still believes that the evidence against Nunez is so overwhelming that he will eventually get his day in court, whether as part of an administrative trial or in the course of his lawsuit. Last November, U.S. District Court Judge Alison Nathan mostly denied an attempt by the city to dismiss the lawsuit, noting “Detective Nunez’s history of the use of excessive force—and the lack of meaningful discipline that resulted from reports of his abuses” in her ruling.
“I would like to ask him to his face why he did that to me when there was no justification at all,” Medina told me. “It’s already been two years and six months. … It’s about time they give me some sort of answer.”
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