The court’s ruling reversed a June 2021 decision by the state Supreme Court that deemed the law “unnecessarily vague” and voided the ban in its entirety. A coalition of police unions brought the lawsuit against the city in 2020.
New York Police Department officials have previously argued that chokeholds were already banned by the department and that officers are taught that once someone is subdued, they should be placed sitting up so they can breathe freely.
The “diaphragm” law, which was maligned by state law enforcement and policing advocates, was passed by the city council in the aftermath of George Floyd’s May 2020 death. It made it a criminal misdemeanor to use a restraint method that restricts the flow of air or blood by compressing the windpipe or carotid arteries or by sitting, kneeling, or standing on the chest or back “in a manner that compresses the diaphragm.”
Scrutiny of police use of force, including chokeholds and other compressive restraints, ramped up after Floyd’s killing, in which an officer knelt on his neck for over nine minutes, and spurred a flurry of state and local government action
to hold officers accountable for misconduct and prevent acts of police brutality. Racial justice and police reform protesters often chanted Floyd’s cries of “I can’t breathe” — the same plea made by Eric Garner six years earlier
as he was held in an unauthorized chokehold by an NYPD officer shortly before he died.
Attorneys for various New York police unions who sued the city over the ban argued that it would be difficult for officers to determine whether their actions are compressing someone’s diaphragm.
The appellate court disagreed, ruling that even if an action’s impact on a person’s diaphragm “may be impossible to assess precisely without specialized tools or equipment,” the effect of an officer’s conduct can still be reasonably determined, according to the Thursday decision.
“A trained police officer will be able to tell when the pressure he is exerting on a person’s chest or back, in the vicinity of the diaphragm, is making it hard for the person to breathe, just as a driver should be able to tell when the amount of alcohol he consumed is making it unsafe for him or her to drive (a proxy for high blood alcohol content) and a layperson should be able to tell when he or she is being too loud.”
The decision also cited the NYPD’s own internal policies and trainings as proof that officers can put the law into practice.
“That (the NYPD policies) are stricter than the statute itself — prohibiting any sitting, kneeling, or standing on an individual’s torso regardless of the effect — is not proof that the diaphragm compression language is incapable of being understood,” the decision states. “The police may simply be seeking to hold themselves to a higher standard or to err on the side of caution, as they did even before enactment of this law.”
In response to Thursday’s ruling, Police Benevolent Association President Pat Lynch released a statement saying the union, which represents the largest group of uniformed officers in New York, is reviewing its legal options.
“Our city leaders need to realize that this ruling deals a direct blow to our fight against the violence that is tearing our city apart,” Lynch said in the statement. “This ill-conceived law makes it virtually impossible for police officers to safely and legally take violent criminals into custody — the very job that New Yorkers are urgently asking us to do.”
The NYPD and the Mayor’s Office did not immediately respond to a request for comment.