Cellphone video, exclusively obtained by NBC 6 Investigators, shows Medley Police officers arresting Joshua Rodriguez inside his then home in January 2019.
The video begins when then Sergeant German Gutierrez puts Rodriguez in a chokehold while two other Medley Police officers try to restrain him.
While the department allowed the use of chokeholds at the time, like other law enforcement agencies in South Florida, it has since banned its use “except in authorized deadly force situations.”
“You guys don’t have a warrant,” Rodriguez, who is on his feet, can be heard saying - while an officer tells him, “Don’t make me hurt you. I don’t want to hurt.”
Rodriguez repeatedly tells the three officers trying to handcuff him, “I can’t breathe, I can’t breathe.”
Eventually, they hit the floor and the scuffle continues.
“I start hearing my kids crying in the background. I hear my wife telling them to let me go, to let me breathe, why are they doing it to me,” Rodriguez told NBC 6 in an exclusive interview. “I feared for my life, I thought I was going to die.”
Katherine Huerta, his fiancé, says it’s still hard to watch what she recorded with her phone nearly two years ago.
“You see your loved one being tossed around, being hurt, you know you can’t really do anything, just record what’s going on and be there,” Huerta told us while fighting back tears.
Police say they went to Rodriguez’ home because he stole a laptop while working for a delivery service.
When asked about the allegations, Rodriguez denied any wrongdoing saying it was a misunderstanding.
In the arrest report, officers wrote Rodriguez “intentionally and violently” resisted being arrested by striking and pushing officers and ignoring their verbal commands.
But Rodriguez’ attorney, Gary Kollin, says it was then Sergeant Gutierrez who crossed the line when he put his client in a chokehold.
“I saw the video, and of course that shocked me, and when I saw George Floyd, I thought of Josh and how he escaped being killed,” Kollin said. “Not only was he choked, at the end, he said your knee is my neck.”
In the video, there is a moment where Gutierrez and another officer are on top of Rodriguez while he is on the floor. Rodriguez can be heard saying “get your s--t off my neck, bro,” but it’s hard to see the position of Gutierrez's knee since there is an officer blocking the view.
We were unable to reach Gutierrez but we showed the video to the police union lawyer speaking on his behalf. He told us he sees something very different.
“I’m not seeing anything they (the officers) did wrong here,” said Andrew Axelrad, from the South Florida Police Benevolent Association, adding while watching someone in a chokehold “isn’t pretty” - the officers followed the department’s policy at the time and its use was effective to arrest Rodriguez.
“He is saying words, he’s saying ‘I can’t breathe.’ That is indicative of the fact that he’s breathing, not the alternative,” Axelrad said. “I hear the de-escalation, ‘I don’t want to hurt you, I don’t want hurt you,’ yet he is still actively resisting.”
Axelrad says it’s important to consider the video shows small portions of the arrest.
In a deposition, Gutierrez told his attorney at the time that Rodriguez told the officers “he was a Golden Gloves champion,” who was training in MMA.
“That’s their opinion,” Rodriguez told us when asked about the comments. “I was protecting myself, my home and my life.”
Rodriguez was arrested and charged with theft, resisting arrest and battery on three law enforcement officers. The Miami-Dade State Attorney dropped the charges months later.
In an email, Medley Police Chief Jeanette Said-Jinete told us Gutierrez and the other officers involved in the incident were not investigated because Rodriguez never filed a complaint.
'He Was an Abusive Officer'
Rodriguez’ attorney says Gutierrez should have never been hired.
“He was an abusive officer,” Kollin said.
When Gutierrez was hired by Medley Police over a decade ago, a memo was sent to the then chief saying he was fired from Miami Beach Police after internal affairs determined he used excessive force during an incident in 2004. Gutierrez also disclosed the termination in his own handwriting.
“He was fired by the city of Miami Beach because he took his handcuffs and wrapped them around his fingers…and slammed the handcuffs into an arrestee's face,” Kollin said.
The Medley Sergeant doing his background also wrote he was investigated by Miami Beach internal affairs 22 times. Records reviewed by NBC 6 Investigators show nearly all the excessive force complaints were ruled as unsubstantiated.
“If an officer has a bad record, and it’s known to be fired, why would another department want that in their department,” Rodriguez said.
Axelrad also represented Gutierrez when Miami Beach fired him.
“In my 20 years career, that was one of the cases that was decided wrong,” Axelrad told us.
He says Virginia Gardens, the department that hired Gutierrez after Miami Beach, did a “deep dive into his background” and interviewed the Miami Beach detectives that conducted the investigation.
“They knew this was wrongfully decided and he deserved a second chance,” Axelrad told us when asked about the case.
Records show Gutierrez received high marks at Virginia Gardens. The department told Medley he “would make an excellent candidate for police officer, without reservation”.
“Whether he did a good job afterwards or not, he should not have been hired in the beginning,” Kollin told us.
Calls for Reform
As part of the latest push for police reform, some are calling for greater access to officers’ records like a public database similar to those used for attorneys and doctors in the state of Florida.
“FLDE (the Florida Department of Law Enforcement) should lead the way in a statewide database letting people easily have access to know why officers are separated from a department,” said Christina Currie from the Fort Lauderdale Citizen Police Review, adding the database should include disciplinary information they have on record for law enforcement officers.
FDLE told us there is a national database of officers who’ve lost their certifications but that’s not open to the public.
Axelrad says he’s not opposed but doesn’t see the need for one.
“My question is what's the purpose of that,” Axelrad told us. “For a citizen to look for an officer record is not that they are going to say, well that officer has a disciplined three years ago so I don’t want him responding to my house, that doesn’t work like that.”
The public can already get officers’ records by contacting FDLE or filing a public records request to the law enforcement agency where they work.
As for Rodriguez, he’s sent a notice to sue the town of Medley and Miami-Dade County saying its officers, who were called as a backup, are also responsible for his “malicious prosecution.”
“What they should learn from it is they should enforce the hiring standards that people do in private life—in industry,” Kollin said. “We should treat police officers just like we treat everybody else.”
The town of Medley and Miami-Dade County declined to comment, citing the potential lawsuit.