After Garner death, legislators seek to bar police use of 'chokeholds'

 ALBANY — The firing of an NYPD officer last week who restrained Eric Garner in 2014 as he repeated, “I can’t breathe” has some legislators in Albany and Washington calling for a law to define and outlaw “chokeholds,” while others warn that legislation would thwart legitimate policing.

Garner's family and the Rev. Al Sharpton again called for legislation after New York City Police Commissioner James O'Neill fired officer Daniel Pantaleo on Monday for using a fatal chokehold. The tactic has been banned by NYPD policy since 1993.

In Albany, a bill with sponsors in the Senate and Assembly will be reintroduced in September, according to the measure’s prime sponsor, Assemb. Walter T. Mosely (D-Brooklyn), who said he is motivated by Garner’s death.

“Unfortunately, this was not the first time this happened, but hopefully we will make it the last time,” Mosely said.

Mosely’s bill was first introduced in 2014 shortly after Garner’s death, but for four years the bill failed to attract a co-sponsor from the Senate majority, which was was then controlled by Republicans. Mosely said he will announce a Senate co-sponsor in September when he rolls out the bill amid a package of law enforcement reforms stemming from the Garner case.

His proposal would create the law of criminal obstruction of breathing or blood circulation by a chokehold. The measure would be a Class C felony, punishable by up to 15 years in prison. It would rise to the level of a first-degree strangling offense if the action violates a police department’s policy against chokeholds. That would be a Class B felony punishable by up to 25 years in prison.

The bill states “it is clear that the NYPD's ban on the use of chokeholds is not sufficient … Not only has this supposed ban not been enforced, there is evidence that the penalties for using a chokehold have resulted in little more than the loss of vacation time.”

“It is obvious that the NYPD is either unable or unwilling to enforce its own employee manual,” the bill states. “Criminal sanctions must be established for those who continue to disregard this banned procedure.”

“I do think it is something the Senate will look at,” said Sen. Alessandra Biaggi (D-Bronx). “I’m sure there is an appetite for this in the Senate.”

But Assemb. Michael Reilly (R-Staten Island) said those seeking to ban specific law enforcement methods seem to  believe police can abide by unrealistic rules when they face danger. “The desire to legislate chokeholds is misguided, uninformed and politically founded,” he said.

“Unfortunately, some of my colleagues watch too many movies — this is not Hollywood,” Reilly said.

In Washington, Rep. Hakeem Jeffries (D-Brooklyn) plans to reintroduce a bill he's proposed in the past two congressional sessions. The bill would make a federal crime of using a chokehold or any other method of applying pressure on the throat or windpipe that could hinder or prevent breathing, said Jeffries' spokesman Michael Hardaway.

“The chokehold is a classic example of violent police tactics,” Jeffries said. “It is an unreasonable measure. It is an unnecessary measure. It is an uncivilized measure. This bill will make it an unlawful measure.”

The legislation would make chokeholds and similar tactics violations of civil rights.

Jeffries, chairman of the House Democratic Caucus, saw his bill die in 2015 and 2018 in the Republican-controlled House Judiciary Committee. But now the bill would go before a Judiciary Committee led by Rep. Jerrold Nadler (D-Manhattan), a co-sponsor of the 2018 bill. A press aide for Nadler did not respond to queries about the measure, which hasn’t been introduced in the Republican-controlled Senate.

The measure’s supporters acknowledge a bill would have to strike a precarious balance between the civil rights of citizens against the right of police officers to protect themselves and their duty to protect the public.

“They’ve taken your power away,” New York Police Benevolent Association president Pat Lynch told his union members after Pantaleo's firing. He said the Garner decision was wrong, in part because Garner was resisting arrest and suffered from obesity that contributed to his fatal asthma attack.

“We’ll be considered reckless every time we put our hands on someone,” Lynch said last week. “To say a police officer doing his job was reckless will freeze this police department.”

The state Association of Police Chiefs and the Senate’s Republican minority did not respond to requests for comment.

Meanwhile, criminologists who have studied the issue say the restraint technique by police that critics call chokeholds are prevalent, despite being banned by most police departments under ambiguous wording.

“They create a life-threatening risk,” said Georgetown Law School Professor Paul Butler. “They should be illegal for police officers in every jurisdiction. We know, however, that simply banning chokeholds isn’t enough.”

He said that in New York City there were 800 complaints claiming chokeholds were used in the last five years.

“In cases in which those complaints are officially verified, punishment is usually quite light — cops get docked pay or lose a few vacation days,” Butler said. “And in the vast majority of cases there is no sanction whatsoever.”

Currently, the standard in state penal law on justification for police to use force is based on “reasonableness.” And reasonableness is “determined from the perspective of a reasonable police officer on the scene,” according to professors Jeffrey Fagan and Bernard E. Harcourt of Columbia Law School.

Under the standard, if a suspect is subdued and no longer resists arrest, force used by police may become unreasonable, but that’s a question now decided by juries, Fagan and Harcourt said.

In an interview, Fagan said a NYPD administrative judge made it clear in the Garner case that “a chokehold was applied recklessly and beyond any reasonable threshold of necessary force, and in violation of NYPD policy and training,” yet no police officers were convicted of crimes.

The definition of a chokehold — as opposed to a “takedown” move as police contended was done in the Garner case — is too vague to protect suspects or police officers trying to subdue them, the researchers agreed.

“There are varying definitions of a chokehold,” according to Fagan and Harcourt of Columbia Law School. “These definitions differ on where the pressure from a forearm is placed around the suspect’s neck.”

“There is a legal disagreement on the definition,” agreed Maria (Maki) Haberfeld, professor of law and police science at John Jay College of Criminal Justice. She said she doesn’t believe Garner died in a chokehold after he was stopped from selling loose, untaxed cigarettes in Staten Island.

“In my opinion, chokehold, which became illegal in the past decade or even longer, entails crushing the neck, restricting the airflow, in general doing anything around and with the neck of the person,” Haberfeld said. “Takedown, on the other hand is restraining somebody from behind using your arms and hands, but placing them just below the neck and this is what I am seeing in Garner’s case.”

She said she saw chokeholds used legally 15 or 20 years ago and knows police departments have trained officers differently since then.

“So, the training has changed but there are definitely many cops on the job who were trained differently and it is not easy to ‘unlearn’ things, especially when it comes to use of force,” she said.

Better training, not a new law, might be best, said Barry Latzer, professor emeritus of criminal justice at the John Jay.

“It would not be a good idea for the Legislature to involve itself with this,” Latzer said. Instead, he said rewriting ambiguous wording in police policy “can easily rectify the problem.”

“We already have criminal laws against assault and homicide so there’s no need to add more crimes to the books,” Latzer said. “This kind of thing is best left to police departments which can take into account the needs of police officers on the street and balance these needs against the public interest in being free from police abuse.”

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.