A state appeals court Thursday reinstated New York City’ controversial “diaphragm law,” which holds cops criminally liable if they restrict a suspect’s breathing by compressing the diaphragm, a measure enacted after George Floyd died at the hands of police in Minnesota in May 2020.
By a unanimous vote, a five-judge panel of the Appellate Division for the First Department found that the July 2020 law, which makes it a misdemeanor for law enforcement officers to use a chokehold or “sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm,” was not unconstitutionally vague as police contended.
A number of police unions, led by the city Police Benevolent Association and the Metropolitan Transportation Authority Police Benevolent Association had initially won a state Supreme Court decision in 2021 that struck down the measure as unconstitutionally vague in the use of the phrase “in a manner that compresses the diaphragm.”
In a statement, city PBA president Patrick Lynch said, “We are reviewing our legal options. However, 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.”
Police agencies in and around the city feared that even incidental contact that compressed the diaphragm could make cops liable for prosecution under the law. In some cases police departments such as those on Long Island cautioned their officers about entering city limits to make arrests. The chokehold section of the law wasn’t challenged.
But the appellate court sided with city lawyers in defending the law. The appeals panel said that the diaphragm measure wording “even if ‘imprecise’ or ‘open-ended,’ is sufficiently definite when measured by common understanding and practices.”
“That it may not be the most accurate word, from a medical standpoint, to describe what happens to the diaphragm when someone sits, kneels, or stands on it does not mean that it is incapable of being understood,” the appeals court ruling stated. The court said accidental contact such as falling on a person wouldn’t subject a cop to prosecution.
“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,” explained the court.
The New York City Council enacted the law following the May 2020 death of Floyd from asphyxiation. Former Minneapolis police officer Derek Chauvin kept his knee on the neck of Floyd, while he was handcuffed, for more than eight minutes in what was later ruled a homicide, Chauvin was convicted of murder and protests over police treatment of unarmed Black men roiled the nation for months.