Denver Police Department sergeant faces 30-day suspension for chokehold that violated policy

"I can't breathe," man says before passing out.
Posted at 5:10 PM, Apr 30, 2019
and last updated 2019-05-01 00:30:19-04

DENVER – A Denver Police Department sergeant faces a 30-day suspension for putting a car theft suspect into a chokehold last September which violated department policies and left the suspect unconscious.

DPD Sgt. Rudolph Suniga was given notice of the pending suspension on April 19 and has plans to appeal, according to an April 17 departmental order of disciplinary action and discussions with the department and union.

He and another officer were called out the 2400 block of Curtis Street on Sept. 23 on a report of an auto theft at the Greyhound Bus station nearby. According to a probable cause statement, Jaworski Gauthier, 41, had tried to steal a parked car and then a parked Greyhound bus after encounters earlier that day with police in both Edgewater and Denver.

But when he was confronted by a bus driver, he fled the scene on foot.

According to Suniga’s discipline letter, another officer first made contact with Gauthier and tried to take him into custody. But Gauthier swung at the officer, knocking his body camera to the ground. Gauthier was unarmed at the time.

At the same time Suniga came over to the other officer and Gauthier, grabbed the suspect by his right arm and then put Gauthier into a front head lock to take him to the ground. He then put most of his body weight atop Gauthier’s head and shoulders, according to the discipline letter.

Body camera video from both officers, as well as the discipline letter, show that Suniga had his forearm under Gauthier’s chin and on his throat.

Gauthier can be heard telling the officers several times that he couldn’t breathe, is heard making choking sounds and saying “help” as Suniga remains on top of him.

Body camera video shows Denver police officer choking suspect

Suniga told internal investigators that he “laid on top of the suspect’s head and shoulders to keep him pinned to the ground until we could get him handcuffed.”

More officers arrived and they were able to handcuff Gauthier. But when they rolled him over, he was unconscious for several more seconds, according to the discipline letter.

According to the letter, Suniga should not have used a chokehold in the instance because the situation did not warrant such a degree of force.

The Denver Police Department’s Arrest and Control Techniques Manual says that a carotid compression technique is one of the takedown techniques available to officers, but that it may only be applied in certain aggravating situations: “A subject’s actions must fall under the category of an aggravated active aggression resistance (aggravated active aggression is defined as a deadly force encounter).”

Additionally, the manual says that when using a carotid compression technique, officers should not apply direct pressure to the front of the throat or to the back of the head or neck.

“When an officer applies pressure to the front of the neck, it compresses the airway. The subject will have difficult time breathing and may resist even more due to the feeling of being suffocated,” the manual states.

The discipline letter says that Suniga told internal investigators that he believed Gauthier was displaying “active aggression” but not the “aggravated active aggression” required to use a carotid compression technique. Investigators found that “aggravated active aggression” was “a predicate that was absent in the incident under review.”

Suniga told investigators he did not intend to choke Gauthier and said he could not hear him making noises or saying he couldn’t breathe because of police radio noise.

But the discipline letter says that the choke hold and Suniga’s putting his body weight on Gauthier were the main contributors to Gauthier losing consciousness.

“By using an unauthorized control hold in a manner that resulted in applying direct pressure to the front of the throat, back of the head and neck of the suspect, Sergeant Suniga used more force than was necessary or reasonable under the circumstances, in violation of the Denver Police Department Use of Force policy,” Deputy Director of Safety Mary Dulacki wrote in the discipline letter.

Suniga was given the presumptive penalty of a 30-day suspension because investigators could not find any mitigating or aggravating factors that would have lessened or increased the length of the suspension, which he plans to appeal, according to the Department of Public Safety.

“The Denver Police Department’s use of force policy emphasizes that officers should only use the level of force necessary and reasonable under the circumstances,” Department of Public Safety spokesperson Kelli Christensen said in a statement. “This is an unfortunate incident that is not reflective of DPD officer standards. Overall, use of force incidents are down 22.7 percent when compared to this time last year.”

Gauthier eventually pleaded guilty to third-degree assault and aggravated motor vehicle theft under $1,000, which are both misdemeanors. He was sentenced April 25 to 180 days in jail but received credit for 148 days of time served.

Denver Police Protective Association President Nick Rogers said the union representing Denver’s officers stands by Suniga.

“As the city of Denver’s population continues to grow, at a rapid pace, our police officers face numerous challenges. This particular suspect tried to break into a home and then tried to steal a Greyhound bus,” Rogers said in a statement. “It was the third police contact in less than 18 hours. The suspect violently resisted arrest and was taken into custody with no injuries. The PPA stands with Sgt. Suniga and believes in the due process he deserves.”

ACLU of Colorado Legal Director Mark Silverstein said the video echoes what happened to Eric Garner in New York in 2014, when Garner died after he was placed in a chokehold by NYPD officers.

“These chokeholds have resulted in countless deaths around the country. They have been controversial for years,” he said.

He pointed out that he believes the officer could have been charged under a law passed in Colorado in 2016 that placed limitations on when peace officers could use choke holds, though the law allows for them to do so when a suspect “is attempting to escape by the use of physical force; or indicates … that he or she is likely to endanger human life or to inflict serious bodily injury to another unless he or she is apprehended without delay.”

“If any private citizen were using force under those circumstances, the district attorney would certainly prosecute,” Silverstein said.

However, the discipline letter for Suniga said he would not face charges after the district attorney’s office reviewed the incident. The letter says the DA’s Office determined he shouldn’t face charges “citing no reasonable likelihood of conviction.”

Denver7's Blair Miller contributed to this report.