New York City Office of Administrative Trials And Hearings [OATH] Administrative Law Judge [ALJ] Faye Lewis recommended that a correction captain [CC] be place on a 49-day suspension without pay as the appropriate disciplinary penalty to be imposed on a Correction Captain for placing a person in custody [detainee] in an impermissible neck restraint hold and submitted a false or misleading "use of force report" concerning the incident.
The CC said he was attempting to stop the detainee from leaving a designated housing area when he grabbed the detainee’s neck and threw him to the ground. The video evidence, however, contradicted CC's testimony claiming that contact with the detainee’s neck was inadvertent. The ALJ found that there was no evidence that CC was in imminent danger of death or serious bodily injury and, therefore, the neck restraint was unjustified and excessive.
The Judge Lewis also found that CC made a material omission in his use of force report by writing that he applied force to the “upper body” without mentioning that he applied force to the neck.
After weighing CC's minimal disciplinary record, his duties as a correction captain, and the severity of the misconduct, the ALJ recommended a penalty consistent with the Disciplinary Guidelines for Use of Force Incidents issued under the aegis of the U.S. District Court for the Southern District of New York, the principles of progressive discipline, and the written policy of the Department of Correction, a 50-day suspension without pay is appropriate.
However, while Appointing Authority did not so request such a penalty be imposed in the event CC was found guilty of the disciplinary charges served on him, in considering the penalty recommended by the Administrative Law Judge, the Appointing Authority noted “there is a [departmental policy] requirement that Captains are to be suspended in seven (7) day increments.”*
Accordingly, for the proven misconduct, the Appointing Authority held that CC should be suspended without pay for 49 days.
Click HERE to access Judge Lewis' findings and recommendation posted on the Internet.
* See the decision in Rothwell, Decisions of the Commissioner, OATH 1963/17 -- the recommended penalty for a Correction Captain was modified from a 50 day suspension without pay to suspension without pay for 49 days in consideration of Departmental Memorandum 01/99, which “requires that suspension of all captains be imposed in 7-day increments”.