As you know, the DEA, together with all the other law enforcement unions, filed a lawsuit challenging the reckless and dangerous Diaphragm Compression Law as unconstitutionally vague and pre-empted by New York State law.
The Supreme Court of New York County agreed with us and struck down the law as unconstitutional.
The City then appealed that decision to the Appellate Division, First Department and asked that Court to overturn the lower Court’s ruling and reinstate the law as is. We asked the Court to affirm the Supreme Court’s decision and permanently ban enforcement of this irresponsible law. On April 28, 2022, oral arguments were held before the Appellate Division, First Department
On Thursday, May 19, 2022, a decision was rendered by the Appellate Division, First Department. As we suspected from oral arguments, unfortunately, the Court reversed the Supreme Court decision striking down the law, and directed the entry of final judgment dismissing our complaint and leaving the law stand.
The Appellate Division’s opinion is short, does not address the evidence, and does not provide any real guidance on how to tell when the diaphragm is being compressed. The Panel says it can be a question of fact in a criminal trial if anyone is actually charged under this law. This is a cop out.
The Appellate Division’s decision is just plain wrong, especially when compared to the thorough trial court decision. For example, the Appeals Court seems to acknowledge that the language of the law is “imprecise” or “open-ended.” However, they hold, it is sufficiently definite “when measured by common understanding and practices . . . Police officers – the targets of the law – can be (and are) trained on the location and function of the diaphragm. 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.”
To say we are disappointed in this decision is an understatement. It’s a slap in the face to the extremely difficult job you do each and every day for the citizens of this City.
The decision was, unfortunately, unanimous. So, in terms of going forward, there is no appeal “as of right.” We would have to make a motion for leave to file an appeal. It’s not automatic. If permission to appeal is granted, there likely would be subsequent briefing on the merits and then argument before the Court of Appeals.
The DEA will continue to explore our legal options, as we believe this law will have a devastating effect on public safety and policing. We must hold our New York City Council accountable for this law’s introduction.
This Diaphragm Compression Law was part of the anti-cop, defund the police rhetoric that the people of this City have since rejected. Having to figure out where exactly a person’s diaphragm is, and whether it will be “compressed” — all while struggling with an individual who is refusing to be placed under arrest — is just one more unnecessary burden on our Officers. It makes our Detectives’ jobs that much more difficult, if not impossible, when dealing with the violent individuals who are already holding this City hostage and frankly, will deter them from taking any action lest they find themselves arrested under this reckless law.
It is our sincere hope that the five District Attorneys — some of whom have already said the law is defective — will not rely on this decision to enforce that part of the law we believe is dangerously vague.
With all this being said, our members must understand that with this decision, the Diaphragm Compression Law is now back in effect and you must act accordingly. When taking police action, proceed with extreme caution at the risk of being arrested or fined. So, please stay safe, always.
As always, we will keep our membership apprised of further actions we can take to fight this irresponsible, vague, and dangerous law.
