City Council considers amending chokehold criminalization law

Earlier this summer, New York City and the state passed sweeping policing reforms in the wake of protests against systemic racism and police brutality following the death of George Floyd in Minneapolis. After weeks of outrage from police unions about cuts to NYPD funding and the online publication of police disciplinary records, the New York City Council is coming around to the idea of reforming some of those reforms. The New York Post reported on Tuesday that the City Council plans to introduce a bill to amend the new criminalization of police chokeholds after the NYPD and the New York City Police Benevolent Association argued that the law makes it dangerous for them to do their jobs.

Passed by the City Council in mid-June, the new law on police chokeholds criminalizes the use of restraints that “restrict the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck, or sitting, kneeling or standing on the chest or back in a manner that compresses the diaphragm” while making an arrest. An officer who makes a maneuver that falls under this description could be charged with a Class A misdemeanor.

New York City’s chokehold criminalization resonated not just in the wake of the death of Floyd – who died in May after a Minneapolis police officer held his knee on Floyd’s neck for more than eight minutes – but also after the 2014 killing of Eric Garner, who died after former NYPD Officer Daniel Pantaleo placed him in a prohibited chokehold.

And while the city’s chokehold bill was celebrated by advocates when it passed this year – while also noted as long overdue – pressure from the NYPD and police unions could result in the council rolling back the language in the law.

In particular, police raised concerns about the part of the law that criminalizes officers applying pressure to someone’s diaphragm while making an arrest. “We have no objection to the chokehold portion of it, but any cop who’s ever fought with someone on the street, trying to get him into cuffs, there’s a great possibility that your knee is going to end up on that individual’s back, and now this new law is criminalizing it,” NYPD Chief of Department Terence Monahan told PIX11 last month.

Some city lawmakers have accused the NYPD of an intentional work slowdown as a way to protest the chokehold law and other new policing reforms. City Council Member Donovan Richards, who chairs the Public Safety Committee, said earlier this month that he would consider amending the bill. “I would be open to having a conversation about the diaphragm portion of the chokehold bill if this means the New York City Police Department would get back to work,” Richards told NY1.

The City Council is set to introduce legislation on Thursday that would add the word “recklessly” to that portion of the law’s text, and would only make that kind of move illegal if it caused injury due to asphyxiation, NY1 reported on Wednesday. The council is expected to have a hearing on the amendment next week and Richards is taking the lead on amending the bill, according to New York City Mayor Bill de Blasio. Richards declined to comment for this article.

In a press conference on Wednesday, de Blasio said that the change in the law resulted from concerns over the growing problem of shootings and gun violence. “Clearly, the crucial reform in the original legislation continues,” de Blasio said. “Chokeholds will be illegal no matter what. As I understand, the focus here is just a clarification on the issue of diaphragms.”

Here’s what other New York City lawmakers, elected officials and union leaders have said about the amendment.

City Council Member Rory Lancman

Democratic City Council Member Rory Lancman sponsored the original bill criminalizing police chokeholds. Lancman said Wednesday that the proposal to amend the law is misguided. “The Chokehold Law passed 47-3, was signed by the Mayor just last month, and there hasn’t been a single example of an officer being unfairly prosecuted or unable to arrest a suspect, so if, as reported, the positional asphyxiation part of the bill is amended to require a showing of recklessness and physical injury when, contrary to NYPD Patrol Guide guidance, an officer sits, kneels, or stands on a suspect’s chest or back in a manner that compresses the diaphragm, in order to appease a police union work slowdown, it will 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,” Lancman said in an emailed statement.

City Council Speaker Corey Johnson

Asked about the proposed amendment to the law, City Council Speaker Corey Johnson said that it wasn’t a done deal. “I think this is an important conversation that has to be had with the members of color in the council and with advocates,” he said. “Legislation in the council has a process. Nothing will be changed without a discussion and public hearing.”

PBA President Pat Lynch

Meanwhile, others say the amendment doesn’t go far enough. “Nothing short of a full repeal can repair the damage from this insane law," Police Benevolent Association President Patrick Lynch said in a statement. “That won’t happen, because the Mayor and City Council have no intention of actually fixing this problem. They are content to blame cops for the mess they created. If they wanted us to be able to do our job safely and effectively, they would never have passed it in the first place.”

#BREAKING PBA STATEMENT ON DIAPHRAGM COMPRESSION LAW REVISIONShttps://t.co/z84gXmG6NQ pic.twitter.com/C5gBAEGOdh

— NYC PBA (@NYCPBA) August 26, 2020

City Council Member Joseph Borelli

Republican City Council Member Joseph Borelli also suggested that the amendment may not adequately address officers’ concerns. “I’m not sure it goes far enough but we will see,” Borelli told the Post.

Correction: The law criminalizes actions that restrict air flow by compressing the diaphragm. An earlier version of this story included a description from an older version of the legislation.