Councilman Robert Holden will introduce legislation to repeal the city’s controversial chokehold law, which was overwhelmingly adopted by the Council in June but vehemently opposed by the NYPD and police unions.
But a recent State Supreme Court Justice’s dismissal of the unions' request for a preliminary injunction could leave the Queens Councilman’s legislation short of oxygen in a chamber that approved the restraint statute by a 47 to 3 vote. It was signed into law by Mayor de Blasio July 15.
Mr. Holden said the law, part of a package of police reforms enacted this summer, effectively prevents officers from doing their job and “creates a serious public-safety issue.” He is expected to introduce his repeal bill at the Council’s Oct. 15 meeting.
“Regardless of the final disposition of the unions’ lawsuit, the ‘chokehold/diaphragm’ law is reckless legislation and it needs to be fully repealed,” Mr. Holden said in a statement. “There’s already a state law that is more reasonable and makes it a felony for a police officer to strangle a suspect...We need to put handcuffs on criminals, not cops.”
He said the city’s statute asks officers “to try to subdue violent criminals with their hands tied, under fear of going to jail.”
Commissioner Dermot Shea and Chief of Department Terence Monahan have also been blunt in their criticism of the law, with Mr. Monahan calling it “insanity.”
The statute makes it a misdemeanor for officers to use chokeholds and restraint methods, such as pressing an arm into a suspect's back or kneeling on a person’s neck, when making an arrest. Police convicted of violating the law could face as much as a one-year jail term and a $2,500 fine.
PBA Lauds ‘Leadership’
The Police Benevolent Association’s president, Patrick J. Lynch, applauded Mr. Holden “for having the courage to stand up for sanity and the safety of all New Yorkers.
“He knows that this law doesn’t allow police officers to do our job safely or effectively. He knows that a few tweaks won’t fix it. Once again, he is choosing common sense and his constituents, rather than political cover. That’s leadership.”
Councilman Rory Lancman, who chairs the Justice System Committee and was the principal sponsor of the law, said the Supreme Court Justice’s denial of a preliminary injunction represented an opportunity for the NYPD and the unions.
“Time for @NYPDnews @NYCPBA @SBANYPD to embrace reality, and maybe(?) become partners for reform instead of obstacles,” he tweeted shortly after the Oct. 5 decision, referring to the Police Department, the PBA and the Sergeants Benevolent Association.
Mr. Lancman has vigorously defended the statute against criticism from police, saying any effort to weaken it would “eviscerate not just the law itself, but the rule of law and the legitimacy of the City Council as an institution capable of overseeing the NYPD.”
Still, despite the dismissal of the unions’ request to suspend the law, the statute is likely to face a stiff and possibly lengthy court challenge.
‘A Chilling Effect’
The coalition of law-enforcement unions, including all five representing city police as well as the State Troopers Police Benevolent Association, the MTA Police Benevolent Association and several others, filed suit in State Supreme Court Aug. 5 alleging that the law is unconstitutional since it is preempted by a similar state statute. It also claimed the law is unduly vague “because it does not enable police officers to adequately discern the scope of prohibited conduct.”
The statute, the suit read, “has had a chilling effect on the ability of officers to carry out their functions” according to police procedures and State law.
The city’s District Attorneys have also expressed misgivings about the legislation, with Manhattan DA Cyrus Vance Jr. noting that legislation’s ambiguity could render it unconstitutional, a similar argument to that made by the unions.
The unions, among other objections to the law, had argued that because it lacked an intent-and-injury requirement, it criminalized behavior that would not be illegal under a similar state statute.
But city officials contended that the two laws do not conflict, since the city’s statute considers the restraints a misdemeanor, rather than a felony—as the state does—and contains an additional prohibition against compression of the diaphragm and omits the requirement of a serious injury.
Justice Laurence Love, citing precedent finding that preemption generally occurs only “when the State specifically permits the conduct prohibited at the local level” or that indicates that “deviation from state law is prohibited,” agreed, saying the unions had not made the case that state law forestalled the city statute.
Finds Some Merit
The Justice, though, found merit in the unions’ argument that the law is “unconstitutionally vague” since the city statute “offers no guidance on how an officer is to determine whether his or her actions are causing a suspect’s diaphragm to be compressed, especially in light of the lack of an injury requirement.
But Justice Love dismissed the unions’ argument that the city statute could cause “irreparable harm” to officers by denying them due process rights. He found that the opposite was in fact the case, since officers would still have the ability to challenge the statute in court.
“Plaintiffs' vague allegations that the law criminalizes conduct in line with said officers’ training and that confusion by officers in life or death situations could have dire consequences for police officers, crime victims, and/or detainees are also entirely speculative,” he wrote.
A spokesman for the unions highlighted the Justice’s finding that the statute was unconstitutionally vague, “suggesting we are likely to prevail on the merits.”
“The battle to protect the constitutional rights of public sector workers continues,” the spokesman, Hank Sheinkopf—a former cop—said in a statement. “The fight for New York goes on, and we look forward to a final judgment overturning this dangerous law.”
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