Two weeks after it was signed into law by Mayor de Blasio, legislation intended to curb the use of violent police conduct continued to draw scrutiny—and also some pushback from the very people responsible for the possible prosecution of officers who run afoul of its provisions.
At issue is the so-called diaphragm bill’s apparent ambiguity and, critically, its constitutionality.
‘It Must Be Fixed’
Contrary to NYPD Chief of Department Terence Monahan’s recent, and insistent, contention that the city’s five District Attorneys would not prosecute officers for violating the law, none have said they would refrain from doing so. All, to varying degrees, have suggested that the law, which also banned the use of chokeholds, is imperfect, however.
Of the city’s five DAs, Staten Island’s Michael McMahon has been the most critical, saying the legislation was drafted in a “reckless way.”
The law “goes well beyond addressing those issues and actually defies common sense in the restrictions it places on police officers who we expect and need to respond to dangerous and critical life-and-death situations,” he said in a July 24 statement.
“It must be fixed," he said in a subsequent tweet.
Despite Mr. McMahon’s “serious objections” to the diaphragm component, he said it was his sworn duty to follow the law. But, he added, he would take account of the full picture of any incident before charging an officer.
“As with every case, whether the accused is a police officer or not, I will look at all the facts and circumstances in making a charging decision, including any possible defenses there may be to the charge,” Mr. McMahon wrote.
Law ‘At Risk’?
Manhattan DA Cyrus Vance Jr. said the legislation risks a successful challenge on constitutional grounds. “I believe the City Council bill may well be pre-empted by state law,” he said during an interview on NY1's Inside City Hall July 8. The State Legislature also passed a bill—signed into law by Governor Cuomo June 12—banning chokeholds but not other restraints.
The portion of the law addressing the compression of the diaphragm, passed by the City Council June 18 and signed into law by Mayor de Blasio July 15, reads: “No person shall restrain an individual in a manner that restricts the flow of air or blood by...sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm, in the course of effecting or attempting to effect an arrest.”
Mr. Vance alluded to the law’s formulation as a “strict liability bill,” meaning that it does not differentiate between intent and accidental application.
“So I think there may be legal challenges to it that would be successful, and make the City Council bill at-risk, as a statute, because of pre-emption by the state, and certainly there is going to be challenges regarding the ambiguity,” he said.
Persons found guilty of the Class A misdemeanor could be sentenced up to one year in jail, fined $2,500 or both.
Bronx DA Darcel D. Clark said that while she “fully” supported the ban on chokeholds also enacted by the city, her office also would consider the circumstances if and when an officer was alleged to have obstructed a person’s diaphragm, the primary muscle, just below the lungs and heart, used for breathing.
“Incidental contact when effectuating an arrest is clearly not the kind of conduct that the statute intended to be criminal conduct,” she said.
The legislation’s chief sponsor, Councilman Rory Lancman, said he was comfortable with the District Attorneys’ approach. “DAs should evaluate every case brought to them,” he said.
Mr. Lancman, an attorney who is the chairman of the Council's Committee on the Justice System, said he was confident the legislation would survive a court challenge.
As written, he said, the law ensured that the prosecutors would not charge officers who made “incidental” contact with a suspect such that it affected their ability to breathe.
“The conduct that is prohibited…those are not things that can be done by accident,” he said of sitting, kneeling or standing on a suspect.
More generally, he said rhetoric by police and police unions with regard to the legislation amounted to “utter obfuscations.”
“This is just law enforcement overreacting to their having lost control of the ability to completely lock down criminal-justice reform,” including changes to bail laws and stricter oversight of police misconduct and disciplinary protocols, Mr. Lancman said during a July 29 interview.
“At the end of the day, the law is not changing and the Police Department is going to listen,” he said.
Although he said there have been discussions among some of his Council colleagues about the legislation since it was enacted, he said its near-unanimous endorsement—it passed 47 to 3—ensured it would survive as written.
Police, Unions Bicker
Police have been hypercritical of that portion of the law, with Chief Monahan calling it “insanity” and, according to his discussions with the District Attorneys, unenforceable.
Citing the law, neighboring police departments, including those of Yonkers and Nassau County, have ordered their officers to stay clear of enforcement actions in New York City.
During a heated CompStat meeting last month, Deputy Chief Brian McGee, the Commanding Officer of the Detective Squad in the NYPD's Manhattan North Bureau, brought up an arrest scenario during which he “accidentally, unintentionally” prevented a person from breathing out of concern for officers' safety.
Interrupting, Chief Monahan said officers could not afford to be fearful because it could get them killed.
“You got every DA come out and say they’re not going to charge that,” he said in reference to the diaphragm law.
Police unions were incensed.
"Chief Monahan claims that all five DAs agree that the City Council's insane 'no touch' arrest law is invalid and they won't prosecute it. That is news to us,” stated Patrick J. Lynch, the president of the Police Benevolent Association. “If every DA believes that, they need to say so publicly to the cops on the street. Otherwise, we have to assume that we are risking arrest any time we lay hands on a criminal who won't go quietly. Chief Monahan's head-in-the-sand mentality isn't helping us do our job.”
Rips Monahan, Distrusts DAs
In a message to members, the Sergeants Benevolent Association’s president, Ed Mullins, said Chief Monahan had lost the confidence of officers. He also chastised city leaders for not consulting with cops before passing their police-reform laws, in effect ceding the streets to criminals.
“The men and women of the NYPD do not trust Chief Monahan’s leadership, nor do they trust any of the five district attorneys,” he said, before alluding to the June arrest of a Queens officer for his apparent use of a chokehold during an arrest in the Rockaways.
“We knew these idiotic laws would put the people of this city in harm’s way," Sergeants Mullins wrote. "Much like Chief Monahan, our elected officials refused to listen to the people in the streets, the people doing the job."
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