Opinions & observations: The Diaphragm Compression Bill — a bridge too far

September 2, 2020 Roger Bennet Adler

New York City Police Academy graduates sat in formation during the graduation ceremony for 457 new members of the NYPD on April 18, 2019. Photo: Bebeto Matthews/AP

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The City Council’s passage (and Mayor Bill de Blasio’s July 15th signing) of a Queens Councilman Rory Lancman’s “diaphragm compression bill” is an understandable, but unfortunately misguided, City Council approach to continue micromanaging the police arrest process when arrestees forcibly resist. Rather than focus on already-banned NYPD chokeholds and diaphragm compression, Lancman’s Law also prohibits police officers from sitting, standing or kneeling on an arrestee’s back and chest, even as they undertake to effectuate an arrest of a suspect unwilling to cooperate, or acquiesce in standard arrest protocols.

The Council acted after the State Legislature only recently enacted legislation essentially codifying a targeted ban on diaphragm compression like that which killed George Floyd in Minneapolis, Minnesota. The City Council has essentially enacted a “Marquis of Queensbury”-like standard applicable to the police, while simultaneously failing to bolster penalties for those who resist arrests and inflict police injuries requiring medical care, hospitalization, and an inability to return to work (c.f. Penal Law Section 35.27). Resisting arrest is a Class A misdemeanor (Penal Law Section 205.30).

Councilman Lancman has also created a glaring inconsistency with the state’s previously passed diaphragm compression ban, which conflicts with Penal Law Section 35.30 addressing the justified use of non-deadly physical force to effectuate an arrest.

My concern is not merely that the City Council has once again undertaken to inappropriately micromanage fast moving, fact-specific unscripted street encounters. Rather, I believe that the State Legislature has “pre-empted” the field of arrests and articulated when permissible force which can be employed. The City Council acted unconstitutionally, in attempting to exercise its legislative power.

Lancman’s Law will, by intent or effect, likely chill police officer willingness to make warrantless arrests, which, as unscripted and unpredictable, can instantaneously expose police to a trifecta of troubles:

Internal Affairs Bureau (I.A.B) investigation
Criminal prosecution by a local District Attorney
A civil suit for “excessive force”

Roger Bennet Adler is a Manhattan-based solo practitioner and former President of the Brooklyn Bar Association and Kings County Criminal Bar Association. Photo: Rob Abruzzese/Brooklyn Eagle

When an arrestee forcibly resists the arrest process, he, of necessity, initiates a violent, and potentially deadly encounter. Councilman Lancman has written a reckless law that will unfairly “handcuff” the police and embolden the criminal underclass to complain about a police response which they themselves caused. A clear case of “legal chutzpah.”

Its enforcement is an example of legislative meddling, and the Council’s ill-disguised legislative hostility to the Police Department. Lancman’s Law must be amended (or repealed). In turn, making resisting a felony arrest a felony, one level below the highest crime of arrests, is a suggested deterrent.

Councilman Lancman’s law, as contrasted with the New York Penal Law (see Penal Law Section 15.05) lacks any mens rea (mental state) requirement. Penal Law Section 15.05 defines four separate mental states:

Intentionally
Knowingly
Recklessly
Criminal negligence

Consistent with the recognition that, with the exception of public health and welfare (see Morrisette v. United States, 342 U.S. 246 [1952]), strict liability is not appropriate, particularly so where there is already a state penal law provision addressed to the permissible use of force in effectuating an arrest.

The concept of state issue preemption is discussed in LaGuardia v. Smith, 288 N.Y. 1, 8 [1942]. After World War II, New York City passed local “rent control” (Sharkey’s Law). In FTB Realty Corp. v. Goodman, 300 N.Y. 140 [1949], the Court of Appeals found it unlawful (and in violation of) Article IX of the State Constitution (see also 210 East 68th Street Corp. v. City Rent Agency, 43 A.D. 2d 687 [1st Dept. 1973] aff’d 34 N.Y. 2d 560 [1970]; Ba Mar Inc. v. County of Rockland, 164 A.D. 2d 605, 612 [2nd Dept. 1991]; Albany Area Builders Assn. v. Town of Guilderland, 74 N.Y. 2d 372, 377 [1989]). The “Diaphragm Compression Law” appears to fit within this category of state pre-empted subjects. The City Council acted unilaterally, with no discernible prior Home Rule authorization.

The Court of Appeals has similarly applied legislative pre-emption to criminal cases. In People v. Diack, 24 NY 3d 674 [2015], the Court of Appeals invalidated a Nassau County local law prohibiting convicted sex offenders from residing within one thousand feet of a school.

The Court recognized that the local governance was unconstitutionally empowered to enact local laws relating to the welfare of its citizens and relying on “police power.” Moreover, such police power is uncircumscribed and cannot run afoul of State Constitution Article 9, Section 2C and Municipal Home Rule Law Section 10[1][i],[ii][a][12].

Here, the state Sex Offender Registration Act (S.O.R.A.) was deemed to have pre-empted the field of sex offender supervision and so is legislatively off-limits to localities. So too would be the City’s Penal Law and Criminal Procedure Law, which comprehensively address resisting arrest and the use of physical force.

Two other glaring deficiencies in the diaphragm compression law are its failure to include a consequential quantifiable result – causing “serious physical injury,” as that term is defined in Penal Law Section 10.00(16), and its omission of an “affirmative defense,” as defined in Penal Law Section 25.00(2) for non-willful contact with the arrestee.

With the absence of, at minimum, an intentional culpable mental state, Councilman Lancman cynically (and perhaps unintentionally) incentivized not arresting those who violently resist. Law enforcement officers should only be subject to diaphragm compression liability when they act “willfully,” as the available evidence in the George Floyd case in Minneapolis, Minnesota powerfully suggests. The perpetrators who resist have more legal protection than the police. There is something wrong with these optics.