'I Was Choked by the NYPD': New York's Chokehold Problem Isn't Going Away
As far as Angel Martinez was concerned, the police officer at the front desk that night wasn't much more than an inconvenience. Sure, he'd refused to take Martinez's complaint. He was even a little rude about it. But for Martinez, after a night in Queens central booking, with his face battered and welts blooming all over his body, that officer was an afterthought.
Martinez was more concerned about the other two cops. The ones he says kicked his ass for no good reason. The ones who'd approached him and started patting him down without a word of explanation. The ones who slammed his face into a parked car, then onto the sidewalk, when he objected. The ones who ruined the new plaid button-down he'd bought for a job interview earlier that day — torn it to shreds.
Those officers, Martinez has alleged in a complaint with the New York City Civilian Complaint Review Board (CCRB), punched him in the ribs, handcuffed him — and punched him one more time, for good measure. They were the ones he was concerned with. Especially Officer Frank Calafiore — who Martinez says kept an arm wrapped around his throat almost from the moment the encounter began.
He still isn't exactly sure of the legal definition, but it sure felt like a chokehold.
But the cop behind the counter? He was the last thing on Martinez's mind. So Martinez laughs and shakes his head when he learns that, today, more than two years after he filed the complaint, the only officer who has suffered any consequences is the one who was on desk duty in the 103rd Precinct that night. Sitting on his mother's deep-blue couch, in a tidy apartment on a tree-lined street in East New York, he can't believe what he's hearing.
"Really?" Martinez throws his hands up. "Come on, he got in trouble?" He breaks into a big you-can't-be-serious grin. "I didn't even care! I didn't even care about that guy. I just wanted to bring it to their attention, that there was an officer doing this."
Martinez, 24, is lanky, with hair that hangs almost to his shoulders. Every now and then a curl comes loose, and he tucks it absently behind his ear.
He's pissed off, he says. The officer behind the counter that January 2012 morning, Carlo Santoro, was just a distraction. Martinez isn't trying to take down the entire department. He's not on a mission against cops in general. Strictly speaking, he's not even on a mission against the officers who allegedly beat him up. He has filed a federal lawsuit against the department, but money's not what he's interested in, either.
"Honestly, I felt like I was being kidnapped," Martinez says. "From all that had happened, I really felt like they were going to put me in that car, take me to an alley, and fuck me up even more. I just want them to know that they can't just get away with this. Because it happens everywhere. It happens on a daily basis."
So what is he after?
"I really want to inconvenience these people," Martinez says. "It's like, you did this to me, and you thought I was just going to be some statistic, another routine stop that you're going to forget."
Martinez is far from the only person to claim he was choked by an NYPD officer in the last few years. Between 2009 and 2013, 1,128 complaints filed with the CCRB have alleged the use of a chokehold.
It's a figure that attracted widespread attention when it came to light this past summer, a few weeks after the death of Eric Garner. The 43-year-old was killed when an NYPD officer used a chokehold to subdue him during a July 17 arrest for a petty offense in Staten Island. Under the department's "broken windows" approach to policing, even minor crimes are often pursued aggressively. To many, Garner's death seemed unnecessary, an avoidable confrontation brought on by a bullheaded, zero-tolerance policy. Captured in wrenching video detail on a bystander's cell phone, the incident prompted citywide demonstrations and a surge of anger over NYPD tactics.
The CCRB is the only agency in the city empowered to take complaints from everyday citizens. Independent from the police department, it handles all kinds of allegations, from abusive language used by officers to excessive force. Its staff of 103 investigators reviews citizen complaints, and when they find them credible, the board recommends disciplinary measures to the police commissioner, who has the final say on any punishment.
When it disclosed the volume of chokehold complaints it had been quietly collecting, some of the anger that erupted after Garner's death fell on the CCRB, an agency long viewed as either feeble or incompetent — or both.
At a CCRB meeting on August 5, shortly after the numbers were released, Michael Meyers, president of the New York Civil Rights Coalition, said the report was coming much too late. "I didn't know about the chokeholds," Meyers said. "The thousand-plus chokeholds, before Eric Garner. And we should have known. The CCRB should have sounded the alarm." At the same meeting, Richard Emery, the board's newly appointed chair, admitted as much, in front of a knot of TV cameras. "Obviously, 1,100 complaints might cause you to think there may have been a pattern," he said.
The board's handling of chokehold allegations has since become emblematic of criticisms that have dogged the CCRB since its inception — in its present form — in 1993. Of the more than 5,000 complaints it receives every year, fewer than half are fully investigated. And of the complaints that are reviewed, only a tiny fraction — between 7 and 14 percent over the past decade — are found to have merit. As an advisory agency, the CCRB can only recommend punishment when it finds wrongdoing by police officers. It's up to the police commissioner to decide if those penalties are actually carried out. And every year, up to 25 percent of its disciplinary recommendations are rejected by the NYPD.
The chokehold allegations were no exception. Less than 50 percent of the instances received a full investigation. (By the board's fairly rigorous standards, a "full investigation" includes interviews with the complainant and the police officers involved, as well as a review of all available evidence.) Of those, only nine have been "substantiated," or determined to be true, based on a preponderance of evidence. Martinez's case is one of those nine.
Such statistics have led many to regard the CCRB as either toothless or inept. Agnes Johnson, a Queens resident who has filed numerous complaints with the board, summed up the views of many at a public meeting earlier this summer: "In the community, we call you a joke." Meanwhile, officer unions, like the Patrolmen's Benevolent Association, regard the board as little more than a body created for the sole purpose of bashing cops.
Despite the shortcomings, significant reforms have come to the CCRB in recent years. Investigation times have been reduced, and the backlog of cases under review has been whittled down somewhat. A significant change came in 2012, when the New York City Council granted the CCRB new powers over the final stage of the complaint process. "Disciplinary trials," which determine actual punishments, were once carried out entirely by police personnel. Now, civilian CCRB prosecutors handle the cases, a seemingly small change, but one that's widely viewed as a step toward more independence.
Another potentially big development came in July, when Mayor Bill de Blasio announced the appointment of Emery, a longtime civil rights activist and attorney, as the agency's new chair. A former lawyer at the New York Civil Liberties Union (NYCLU), Emery made his career partly by agitating against — and suing over — the kinds of abuses the CCRB investigates. He has also maintained a decades-long friendship with police commissioner William Bratton. And in a system that requires the cooperation of the police department in order to be effective, Emery may be the rare appointee with the bilateral support necessary to remake the agency.
Emery has been baldly critical of the CCRB since his appointment. In fact, as he noted in an interview with the Voice, he's been critical of the agency "for more than 20 years." He and others see the handling of chokehold allegations as a kind of test case for the CCRB. To that end, they're preparing a much-anticipated report on the allegations later this month. Emery says the report will help determine whether or not the number of chokehold allegations is truly indicative of a pattern of abuse: Are the allegations all smoke, or is there fire? And is the board doing enough to track and categorize this specific subset of complaints?
It's the first high-profile step in what Emery says will be a broad reform process at the CCRB. He says, for example, that he wants to cut complaint-review times by 75 percent, and to release far more information the agency collects about allegations. He also wants to get CCRB staff out into the outer boroughs, and to usher in a new, mutually respectful relationship with the police department.
He's moving fast. And he's blunt about the state of the agency he's just taken over. It's broken, he says, in virtually every way that matters.
"If the definition of broken is that there's no confidence in its judgments by the police, and no confidence in its responsiveness by the public, then it's broken," Emery says. "Because neither of the primary groups it affects have any confidence in it.... It can only get better, from that point of view."
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Photo by Celeste Sloman.
The chokehold element makes Angel Martinez's case especially relevant today, in the wake of Garner's death. But aside from that, his allegation is one that the board sees all the time — a hard-to-prove story of casual, routine brutality.
Because New York State law protects virtually all records related to police misconduct, the public can learn almost nothing about the chokehold complaints collected over the past five years. Martinez's case, however, is different. It was the only one to have resulted in a "disciplinary trial," reserved for the most serious allegations. Examined through interviews and transcripts of officer testimony (which were obtained by the Voice under New York's Freedom of Information Law), Martinez's story offers an unusual window into the CCRB's machinery, at a time when the spotlight is shining on an organization that rarely takes center stage.
Martinez and the police can agree on this much, at least: On January 24, 2012, in the Lindenwood section of Queens, he and a friend were stopped by two plainclothes officers for riding their bikes on a sidewalk. Beyond that, the two sides don't agree on much.
When the officers approached, Martinez says, he knew what was coming: He was going to be frisked. There were more than 500,000 stop-and-frisk encounters in New York City in 2012, according to NYPD statistics. And Martinez estimates he's been stopped at least 10 times over the years. "I live in Brooklyn," he says. "We do get messed with a lot."
In the past, he'd always given the officers permission to search his pockets. "The moment I get stopped, I already know the deal," he tells the Voice. "I put my hands in the air. And I say, 'I know what y'all are going to do. Do it, and let me go, because I'm not doing anything wrong.' "
But on that night, Martinez says, he was fed up. He'd learned only recently that the cops need a legitimate reason to pat you down without your consent. So Martinez decided to do something different from what he'd done in the past. He decided to say no.
"If you don't consent to that, they can't do it," Martinez says. "When I got stopped [that night], I was trying to assert that right."
Martinez admits he was a little defiant, but he insists he wasn't violent. The next thing he knew, his face was being bashed against a parked van. Shortly after that, he says, he was being choked.
"My neck was in the bend of his arm," Martinez says, gesturing. "It seemed like a couple of minutes. I mean, it probably wasn't. But for me every minute was, just, crazy. I've got this guy on my neck, and I've got this other guy punching me."
The officers tell a different story, according to CCRB transcripts from April of this year. Calafiore testified that Martinez had his hands in his pockets when the encounter began. That's a red flag for officers worried about their safety, and Martinez further raised suspicions when he refused verbal orders to remove them. According to Calafiore, the scuffle began only after Martinez shoved him. And in his testimony, he categorically denied ever using a chokehold.
"I felt like I was being kidnapped," Angel Martinez says of the January 2012 incident.
The current shake-up promised by Emery, very much in its early stages, is part of a long history of periodic, often contentious, attempts at reform. The precursor to the modern CCRB was established in 1953. It was staffed only with police personnel and, early critics charged, functioned more or less as an extension of the department. By 1966, in response to perceived heavy-handedness during civil rights and anti-war demonstrations, community leaders began to call for civilian representation on the board.
It would be the first major push for reform, and police organizations opposed to civilian control of the board fought back, initiating a campaign to amend the city's charter — through a voter referendum — and prevent changes to the CCRB's makeup. What followed was an acrimonious debate marked by ugly, racial politics and sometimes-laughable hyperbole. Ads appeared that seemed to play on white fears of urban violence. One showed a young blond woman emerging from a darkened subway station, with ominous block type reading, "The Civilian Complaint Review Board must be stopped! Her life...your life...may depend on it!"
That year, the president of the Patrolmen's Benevolent Association, a hulking, blunt-spoken cop named John Cassese, was quoted in the New York Times saying that he was "sick and tired of giving in to minority groups with their whims and their gripes and shouting." Cassese suggested that the proposal for civilian oversight, which came most prominently from civil rights organizations, was part of a push by communist sympathizers to weaken the police department ahead of a Soviet invasion. In another article, the Times quoted him saying, "If we wind up with a review board, we'll have done Russia a great service."
After months of campaigning, the police position was supported overwhelmingly by voters, and the department maintained control over the institution for another 27 years. It wasn't until 1993 that the modern board was established, with a fully civilian membership. The debate that time was less venomous, with the city council voting to amend the charter language passed in 1966.
Today the CCRB has 13 members, all of them civilians: three appointed by the police commissioner, five by the city council, and five by the mayor. Complaints come into the board, most often by phone, and are assigned to an investigator for an initial review. The complainant is then interviewed at the board's Lower Manhattan headquarters. To make the complaint official, complainants need to give a sworn statement, something that was viewed as a concession to police worried about frivolous allegations. The investigator also interviews the officers involved, along with any witnesses, and, after gathering available evidence, submits a report to the full board.
If the full panel determines that the allegations are likely true, based on "a preponderance of evidence," it votes to substantiate the claim. In cases where penalties are recommended, they can range from mandated training to loss of vacation days to suspension or outright dismissal.
Until 2012, substantiation was the final step in the board's involvement. Substantiated complaints were forwarded to the police commissioner for a disciplinary trial, where prosecutors employed by the NYPD would bring evidence and an administrative judge would determine whether the accused officers should face penalties.
But the city council made a major change to CCRB practices that year, at the height of the debate over stop-and-frisk, giving the agency broad new prosecutorial powers. Under the new system, cases are prosecuted by CCRB staff, not police employees. In theory, that change made the process more independent. There are exceptions; officers with otherwise clean disciplinary records, for example, can have their cases prosecuted by department investigators instead. The most serious, like Martinez's, are handled by CCRB's own staff.
Staff involvement in the trials has had the effect of significantly opening the CCRB process to scrutiny, both by the media and by the complainants themselves. New York is among a handful of states that, by law, provide almost absolute confidentiality for police disciplinary records. In many other states, performance records can be inspected by the media and other watchdogs; but in New York, almost nothing is public, a protection that applies uniquely to police.
"It's an awful, awful statute, with awful judicial interpretations," says Bob Freeman, head of the state's Committee on Open Government. "In effect, the government employees that have the most power are the least accountable."
This strict confidentiality has meant that, until the trial process was revamped in 2012, most of the CCRB's work was virtually opaque. Complaints are still confidential until they're substantiated; even then, only limited statistical data is released. But records of the proceedings are now held by the CCRB rather than the department, making them relatively open to outside scrutiny.
Chris Dunn, a staff attorney with the New York Civil Liberties Union, is a longtime CCRB critic.
Chris Dunn, an attorney with the NYCLU, has long been a thorn in the side of the CCRB. He's a regular attendee at monthly meetings, where he forcefully challenges the board on the latest statistics and initiatives.
Dunn believes the change made in 2012 was an important one. In the past, he says, substantiated complaints that went to the police commissioner often went no further. "The department did a terrible job dealing with complainants," he says. "The new system is a significant improvement in that sense."
Allowing CCRB staff to carry out prosecutions was a change fought hard by some police unions, particularly the Patrolmen's Benevolent Association. Back in 2012, its president, Patrick Lynch, told the Times that the new system would expose officers to "kangaroo trials" — and its opinion hasn't softened since. The NYPD didn't respond to requests for comment on this story, and the PBA declined an interview, but tells the Voice in an emailed statement that, as far as it's concerned, the CCRB is hopelessly biased against police, pressuring citizens to "continue questionable claims" and pursuing harsh penalties against "overworked and undercompensated police officers."
Dunn says he can't think of a member of the CCRB board he would describe as biased against police — several are retired police officials themselves. And far from pressuring complainants, Dunn thinks that the board does too little to follow up on the allegations it receives.
Biannual reports the organization releases suggest one of the major problems with the process is, in fact, losing touch with complainants, for a range of reasons. A key measure of the board's performance over the years has been the "truncation rate," a term used to describe how many cases fall by the wayside without a full investigation. Truncation can occur when a citizen withdraws a complaint, but it happens more commonly when he or she declines to cooperate, or simply can't be reached. It's the reality of accepting complaints from individuals who may fear retaliation, or may simply want to register their discontent without being drawn into a formal, often lengthy investigatory process.
The truncation rate has hovered around 60 percent over the past few years. Dunn acknowledges that some of those "truncs" may be beyond the board's control, but he attributes the rate in part to the slow, grinding process of investigations: People simply get fed up. And while he says it's hard to identify an ideal rate, the overall functioning of the board leads him to believe that more cases should be substantiated than have been in the past.
"We think the substantiation rate is, in fact, too low," Dunn says, "but there's not a magic number there for what a substantiation rate should be." There are too many variables for that.
Though Dunn acknowledges that the board is limited in its powers, he still believes it has an important role to play. Maybe most important, he says, it has a loud voice that can draw attention to police misconduct. And while individual proceedings may have become more transparent, Dunn thinks the board has failed to publicly advocate for change, or alert the public to potential trends, in the way it used to.
"I don't think the design of the CCRB makes them toothless. They have enormous ability to bring public attention to police misconduct, and to investigate misconduct," Dunn says.
Chokeholds were formally banned by the NYPD in 1993, partly in response to the death of 21-year-old Federico Pereira two years earlier. Caught sleeping in a stolen car on a Queens street, Pereira died when police used a "carotid restraint" to subdue him during a struggle.
Designed to restrict blood flow to the brain and cause loss of consciousness, carotid holds were, at the time, a permitted restraining technique at the NYPD and in other departments across the country. Before the widespread adoption of mid-level force tactics like pepper spray and Tasers, chokeholds of various types were seen as a sensible — even humane — alternative to nightsticks or firearms.
But the tide began to turn against chokeholds as early as the 1980s, after a highly publicized death in Los Angeles in 1982. The issue was propelled onto the national stage when LAPD chief Daryl Gates told the Los Angeles Times that, "in some blacks, when it is applied, the veins or the arteries do not open as fast as they do on normal people,'' comments widely regarded as racially insensitive, and which prompted calls for his censure.
The firestorm in '82, along with a series of medical studies suggesting that chokeholds were far more dangerous than previously suspected, made other departments take notice, including the NYPD. It was one of many big-city departments to pass heavy restrictions on the tactic during the 1980s. In 1993, when then-commissioner Ray Kelly announced the total ban in the wake of Pereira's death, he insisted that the change was really a minor adjustment to the restrictions added in the previous decade.
Often classified as a "deadly force" measure, some departments still permit various types of chokehold when an officer is at immediate risk of death, the kinds of circumstances wherein a gun might be deployed. But even today, those prohibitions are not without controversy. After the assault of Rodney King in Los Angeles, some experts even suggested the LAPD's ban on chokeholds had set the stage for the savage beating; with chokeholds off the table, they argued, police had been forced to use batons and boots instead.
David Klinger, a former LAPD officer, now an associate professor in the criminology department at the University of Missouri, St. Louis, says almost every force method used by police carries some risk of death. And he believes carotid restraints, when used correctly, may well help defuse a dangerous situation with minimal violence.
"To equate a carotid restraint with a police handgun makes no sense," Klinger says. "If you train officers currently on how to properly apply it, and what to do once the person is rendered unconscious, then it is a viable tool."
The NYPD's patrol guide now bars chokeholds unambiguously, seeming to prohibit virtually any contact with a suspect's throat. "Members of the New York City Police Department will NOT use chokeholds," it says, plainly, with emphasis in original, defining the term broadly as "any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air."
At the offices of his private law firm near Rockefeller Center, Richard Emery is dressed casually, in a slightly threadbare polo shirt and khakis.
He believes the CCRB is at a turning point, he says. The agency "failed New York City" by not releasing, either to the public or the police, the information it had been gathering on chokeholds. And he sees the Garner case, and the attention it focused on the agency, as something of an opportunity.
"An event like this can galvanize an agency like CCRB to look at things differently," Emery says. And the "confluence," as he puts it, of the Garner controversy, a new police commissioner, and his new position at the helm of CCRB might provide the spark that's needed for real reform.
Emery speaks like a litigator, in compound sentences, dropping phrases like "regression analysis," and he's full of ideas. They range from the bureaucratic, like increased salaries for investigators — who currently make an average of about $46,000 — to the potentially gimmicky, like CCRB vans to take complaints in the outer boroughs.
Maybe most importantly, he wants to speed up the complaint process. Cases routinely stretch for more than a year. Martinez's case, which has been ongoing for more than two years, is not atypical. "The complainants lose interest, which is exactly what I would do if I were a complainant there," Emery says. Even worse are the ones that languish so long that the statute of limitations on potential punishment expires. According to CCRB statistics, there are around a dozen such cases at any one time, though those numbers have been falling.
Among Emery's priorities is to create a system to sort through complaints as they come in, with an eye toward resolving those that can be dealt with quickly. Cases are currently handled on a first-come, first-served basis. If strong evidence, such as video footage, exists, there's no reason for that complaint to languish for months, he says. The goal is to clear more complaints in less time, and to direct resources to the more difficult allegations.
Emery also wants to make the board more accessible — that's where those vans come in. Like all complainants, Martinez was required, after an initial telephone interview, to come to the CCRB's Lower Manhattan offices to file his sworn complaint.
That's a problem the board has been working on since before Emery arrived. The first installment of a program called "CCRB in the Boroughs" debuted in June. The CCRB staff sets up shop for the day at temporary locations away from its Church Street headquarters. Three such sessions have already been held, and the board plans to continue and expand the process, hopefully with permanent office space. Emery adds that the creation of an online database is also in the works. He hopes it will allow complainants to track their cases more closely, and keep them from losing interest. Over the course of the past two years, Martinez says he has invested dozens of hours following up on his complaint. He may be especially motivated, but not every complainant is.
In general, Emery says, he believes the CCRB complaint process is probably more advantageous for police than for the complainants themselves. But he's also sensitive to the needs of the officers.
"I do think police officers have been..." he pauses. "How do I say this? Fucked around, by a system that has not given them quick and fair results."
In some cases, CCRB complaints can lead to serious consequences. So having an open allegation means an officer works with a sword hanging over his or her head, in some cases for years, before the case is ever resolved. And since discipline for NYPD officers can come through several channels — Internal Affairs, the Inspector General at the Department of Investigation, or civil lawsuits — the CCRB is often seen, Emery says, as the least legitimate of the bunch. He believes speeding the process — from complaint through investigation — will give the board more influence. "CCRB cannot be the stepchild of the disciplinary system," Emery says. "And it is now. It is a second-class form of discipline, in everybody's view."
For his part, Martinez describes his experience with the CCRB as a mostly positive one. He didn't even have a problem with the travel required. "I grew up in New York," he says. "I just took the train."
Martinez says his lawyer, Manhattan-based Victor Brown, told him the CCRB's complaint process was a waste of time. "[Brown said] the most they could do is maybe they'd put a complaint in their file or whatever," Martinez says. And if anything, the complaint has slowed his lawsuit's progress. Attorneys for the city have successfully pushed for delays until the CCRB process is concluded. Currently pending in federal court, the suit seeks damages in excess of $150,000. But for Martinez, the lawsuit seems almost beside the point.
"I told my lawyer, it's not about the money," he says. The contingency-based arrangement he struck means legal fees will eat up 30 percent of anything he gets anyway, but that figure doesn't faze him. "Listen, you can take half. You can take it all. I don't care."
Martinez is pursuing the lawsuit because, whether he likes it or not, bad luck found him. And if he can change that misfortune into a positive experience, he says, he might as well. "No one's going to get mad at money," Martinez notes, dryly, adding that a settlement, even a few thousand dollars, could make a big difference in his life. "I could build with that," he says. "I could plan with that."
He could buy a car. There's a job out in New Jersey he could apply for, collecting money from some coin-op laundries, but only if he had reliable transportation. Right now he's dispatching for a black-car service a few days a week — the job he'd interviewed for on the day of his arrest — but if he had steady work, he could save a little money and take some classes. Computer science, he says. He's always been good with computers.
The bulk of his complaint, including the chokehold allegation, has already been substantiated. And today, Martinez's case is in the hands of an administrative judge. If any punishment is ultimately recommended for the officers, it will be up to the judge to determine the penalty, a recommendation the commissioner is free to reject. As for the incident that started it all, way back in 2012, Martinez was charged only with the bicycle violations and resisting arrest. All of those charges were later dismissed.
Martinez knew before he started that his chances of success were slim. Even after the sworn statements, the testimony and hearings, the countless phone calls, it's possible, even likely, statistically speaking, that neither of the officers will face serious consequences.
But, he says, after years of seeing and experiencing police harassment, he feels like simply registering his anger was an accomplishment. All of the time he's spent pursuing his complaint has been reflected on the officers who wronged him, he explains. They, too, had to face the CCRB staff and give their statements. Because of his complaint, they had to sit in a witness chair and defend their actions.
"The way they were acting [during the arrest], they could have been regular people off the street, just fucking with people, just playing cops. It literally felt like they were my older brother and they were taking out their anger on me," Martinez says.
He remembers a time when he was a kid, years ago, when he saw a guy on his block get arrested for throwing a chicken bone on the ground. "They didn't even try to give him a summons," he says, they just packed the guy up and took him off to jail. It's occasions like that, the inflexibility of the police officers he's interacted with, that Martinez wanted to take a stand against, even in a small way.
The money would be nice. And seeing Calafiore and his partner, David Marconi, get some kind of comeuppance would be satisfying, too. But even if nothing happens to the two officers, in some sense, Martinez explains, he's already succeeded. Simply by standing up, just a little bit, he's made sure that his won't be another anonymous, forgettable arrest.
"They're gonna remember my face," Martinez says. His large green eyes narrow. "The next time they decide to do this? They're gonna think twice."
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