from the you-guys-fight-the-hardest-for-the-worst-stuff dept

The killing of Eric Garner — an unarmed black man — by white NYPD officer Daniel Pantaleo was yet another in long and unending series of flashpoints that generated nationwide protests against police violence.

Of course, the NYPD felt its officer, one in plainclothes who choked Eric Garner to death over the alleged crime of selling untaxed cigarettes (i.e., “loosies,” single cigarettes at a price point far more affordable than paying the ~$10/pack price that was standard in New York City in 2014), had done nothing wrong. He had simply applied a department-approved restraint. That restraint was a chokehold, one that killed Garner as Pantaleo ignored Garner’s repeated assertions that he could not breathe.

The NYPD’s biggest union — the Patrolmens Benevolent Association (PBA) — then helmed by Pat Lynch, was swift to point out everyone else but the NYPD and Officer Pantaleo were to blame for this turn of events. He demonized the NYC resident who had turned over his cellphone recording of this homicide to the press, claiming this citizen was a “criminal” who was only serving himself by exposing this killing to the general public.

The city responded, albeit belatedly, by doing what the NYPD was unwilling to do itself: it banned chokeholds and other restraint tactics that compressed arrestees’ airways. The PBA responded to this change in law childishly. It sued the city, claiming that banning officers from choking people was somehow an unconstitutional abuse of the city government’s powers.

It lost in the lower court. And, as (briefly) reported by Courthouse News Service, it has lost again, this time at the hands of New York State Court of Appeals, which (somewhat confusingly is the state’s top court).

Never mind the fact that choking someone would only be a misdemeanor. Never mind the fact the NYPD rarely, if ever, punishes officers for violating policies, laws, or the Constitution. Never mind the fact that any charge would likely be overturned by the union-enabled arbitration process, which almost always allows bad cops to stay employed, often without any permanent stain on their service record.

The PBA went to court, implicitly arguing officers should be able to kill residents with choke holds and other dangerous restraints. It wasn’t the only union making this ridiculous argument. As the appeals court decision [PDF] notes, it was joined by 16 other police unions representing officers affected by the state law.

The PBA argued the new statute was preempted by preexisting laws that governed use of force by the state’s law enforcement officers. It also argued the statute was unconstitutionally vague, even though it only targeted very particular restraint tactics.

It also claimed officers’ due process rights were violated because officers would have no way of knowing if they were violating the law. According to the PBA, an officer choking someone would be unable to know if they were illegally choking someone.

Plaintiffs also asserted that Administrative Code § 10-181 violates the State Constitution’s due process clause and is void for vagueness because the portion of the law relating to compression of an arrestee’s diaphragm fails to give adequate notice of the conduct prohibited. To support their vagueness challenge, plaintiffs submitted affidavits by two former New York City Police Department officials who averred that police officers would not understand what it means to “compress” an arrestee’s “diaphragm” and would not be able to discern, at any given point during an arrest, whether they are in fact “compressing” the diaphragm. Plaintiffs also proffered affidavits from two medicalexperts, both of whom opined that Administrative Code § 10-181 was “vague and confusing.”

We certainly don’t expect police officers to be medical experts. I mean, how could we? We certainly don’t expect them to actually know the laws they’re enforcing, much less comprehend the coverage of long-held constitutional rights.

On the other hand, the most obvious response to a choke hold ban would be to err on the side of caution. If a form of restraint has the chance to “compress” an arrestee’s “diaphragm,” maybe that form of restraint should be abandoned in favor of something else. And if something does unexpectedly compress someone’s diaphragm, it’s likely courts, unions, arbitrators, and the NYPD itself would find a way to ensure the officer never faces (misdemeanor!) criminal charges.

The city felt the restrictions were easy enough to understand, assuming one was actually willing to understand them.

As to plaintiffs’ vagueness claim, the City proffered NYPD training materials illustrating that officers are instructed regarding the movement and function of the diaphragm, and that officers are trained not to use chokeholds or to sit,kneel, or stand on the chests or backs of arrestees.

Once you know where the diaphragm is located (something anyone who’s gone through a elementary school human biology course comprehends), all you have to do is avoid compressing it. Compressing it often requires doing something that restricts breathing, like standing, sitting, or kneeling on someone’s chest. Quite obviously, placing someone in a literal choke hold would similarly restrict breathing.

But if you don’t want to understand something as simple as this, you don’t need to. That’s the gist of this lawsuit, which attempted to remove legal restraints from some NYPD officers’ preferred forms of restraint. The PBA and its buddies hoped to secure a win for their deliberately obtuse representees.

But it’s not going to happen. The state’s top court says there’s nothing wrong with law, contrary to the PBA’s assertions and contrary to (some) conclusions reached by the lower court.

First, the court points out there is no actual conflict of law presented by the new statute. The new statute expands what’s already in place. It does not replace existing laws nor do existing laws render the new law void, no matter how much the PBA pretends it does.

As we have now clarified, the legislature has not preempted the field and therefore Administrative Code § 10-181 is not rendered inconsistent with state law just because it is broader in scope than Penal Law § 121.13-a. There can be no serious contention that the state specifically permits the conduct prohibited by section 10-181 (see New York State Club Assn., 69 NY2d at 221-222). Further, section 10-181 does not conflict with those provisions of state law that permit the necessary use of physical force (see Penal Law § 35.30), since a justification defense remains available in prosecutions for violations of the local law. Therefore, Administrative Code § 10-181 is a valid exercise of the City’s municipal law-making authority.

As for the law being too vague and threatening due process rights because cops aren’t capable of understanding complicated things like “compression” or “diaphragm,” the court has this to say, in what I hope is its most condescending tone:

Here, a person of ordinary intelligence would understand the term “compress” to have its common meaning: “to press or squeeze” or “to reduce in size, quantity, or volume” (Merriam-Webster.com Dictionary, compress [https://www.merriam-webster.com/dictionary/compress]). Further, as evidenced by plaintiffs’ expert affidavits, the role of the diaphragm in respiration is generally understood. Contraction of the diaphragm enlarges space in the chest cavity, allowing the lungs to expand and fill with air upon inhalation. Conversely, when the diaphragm relaxes, the lungs deflate and expel air. Movement of the diaphragm in this manner is known to be an integral component of respiration.

Significantly, Administrative Code § 10-181’s reference to compression of the diaphragm “cannot be viewed in isolation, for it is but one element of a statute that gives greater definition to the proscribed conduct” (People v Shack, 86 NY2d 529, 539 [1995]). Reading the challenged clause in context, an ordinary person would understand that section 10-181 prohibits the application of pressure to an arrestee’s chest or back through specified actions—sitting, kneeling, or standing—in a manner that impedes the person’s ability to breathe by causing interference with the regular movement of the diaphragm.

If citizens can understand things like this, we certainly should expect cops to attain this minimal level of comprehension. And when it comes to deploying restraint, everyone — public or private — is expected to use the minimum amount needed to do the job.

Both private citizens and law enforcement officers have long been required to gauge the impact of physical force used against others to ensure their employment of force is consistent with statutorily delineated parameters…

This paragraph makes it clear why this law was needed. Citizens already understand certain forms of restraint cross the line from acceptable to criminal. Cops know this as well, but no existing law actually forbade them from crossing this line. The NYPD was unwilling to handle the issue itself, which forced the legislature to fill this void in police leadership. And once it did, the first thing cops did was sue about it.

The law survives the challenge. It isn’t vague and it isn’t an overreach. In a better world, it wouldn’t even be necessary. But the NYPD has abdicated its disciplinary responsibilities for years. And if it’s not willing to punish officers for choking people, then it’s up to the city and state to provide the accountability the NYPD refuses to provide.

Filed Under: chokeholds, choking, nypd, pba