Cops’ court win
Law barring Finest from restricting breathing KOd
A state judge Tuesday tossed the city’s controversial “diaphragm law,” which would make it a crime for police to restrain a suspect by restricting their breathing.
The law, enacted in 2020, bans the use of chokeholds, which are already outlawed by the state, but adds language making it a misdemeanor for cops to restrain someone by “sitting, kneeling or standing on the chest or back in a manner that compresses the diaphragm.”
Manhattan Supreme Court Justice Laurence Love called that language “unconstitutionally vague,” and ruled the law “void in its entirety.”
In a letter to NYPD officers, the Police Benevolent Association — which joined 17 other police unions in a lawsuit to strike down the law in August — called the ruling “welcome news.”
The diaphragm law “made it virtually impossible for police officers to safely and legally take a resisting suspect into custody,” the PBA’s letter reads.
“I applaud Judge Love’s decision and appreciate that he saw through this politically motivated legislation and returned some much-needed sanity to the world,” New York State Troopers PBA President Thomas Mungeer said. The state troopers union filed a separate lawsuit challenging the city’s ban.
The unions’ lawsuit contended neither the law nor NYPD training materials adequately defines what it means to compress the diaphragm.
“Plaintiffs are correct in their argument that the submitter training materials do not meaningfully explain what is meant by ‘compresses the diaphragm,’ ” Love wrote in his 17-page decision. “The NYPD appears to have simply ignored the issue entirely by simply imposing a blanket ban on any activity that could lead to even the possibility of compressing the diaphragm.”
And though the city’s lawyers suggested striking the words “compresses the diaphragm” from the statute while keeping the rest of it intact, Love rejected that solution, since it would make it illegal for cops to sit, kneel or stand on a suspect’s back or chest during the arrest even if their breathing isn’t restricted.
“It is this court’s sincere hope that the New York City Council will revisit this issue to address this vital matter,” Love wrote.
When asked for comment, the city Law Department said, “The city is reviewing its legal options.”
No officer has been charged under the diaphragm law since it was enacted July 15, union officials said.
A few days after its passage, then-NYPD Chief of Department Terence Monahan said in a closed-door meeting of NYPD brass that officers shouldn’t be afraid of the new law. “We’ve got every DA come out and say they’re not going to charge that,” he said.
Staten Island DA Michael McMahon said in July he doesn’t intend to prosecute any cops who accidentally violate the law, and Manhattan DA Cy Vance Jr. said he expected the statute wouldn’t survive legal challenges — in part because it’s preempted by the state’s chokehold ban.
As part of his decision, Love ruled that the state law, which makes a police chokehold a felony offense, doesn’t preempt the city statute.