Opinion
INDEX NO. 653624/2020
10-05-2020
POLICE BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC.,SERGEANTS BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, LIEUTENANTS BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, CAPTAINS ENDOWMENT ASSOCIATION OF THE CITY OF NEW YORK, DETECTIVES' ENDOWMENT ASSOCIATION OF THE CITY OF NEW YORK, PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION INC.,PORT AUTHORITY DETECTIVES' ENDOWMENT ASSOCIATION, PORT AUTHORITY LIEUTENANTS BENEVOLENT ASSOCIATION, PORT AUTHORITY SERGEANTS BENEVOLENT ASSOCIATION, SUPREME COURT OFFICERS ASSOCIATION, NEW YORK STATE COURT OFFICERS ASSOCIATION, NEW YORK STATE POLICE INVESTIGATORS ASSOCIATION, LOCAL NO. 4 OF THE INTERNATIONAL UNION OF POLICE ASSOCIATIONS, AFL-CIO, BRIDGE AND TUNNEL OFFICERS BENEVOLENT ASSOCIATION, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY SUPERIOR OFFICERS BENEVOLENT ASSOCIATION, METROPOLITAN TRANSPORTATION AUTHORITY POLICE BENEVOLENT ASSOCIATION, POLICE BENEVOLENT ASSOCIATION OF NEW YORK STATE, NEW YORK CITY DETECTIVE INVESTIGATORS ASSOCIATION DISTRICT ATTORNEYS' OFFICE, Plaintiff, v. THE CITY OF NEW YORK, Defendant.
NYSCEF DOC. NO. 57 PRESENT: HON. LAURENCE L. LOVE Justice MOTION DATE 9/22/2020 MOTION SEQ. NO. 001 002
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 44, 45, 46, 47, 48, 49, 50, 51, 52 were read on this motion to/for PREL INJUNCTION/TEMP REST ORDR. The following e-filed documents, listed by NYSCEF document number (Motion 002) 40, 41, 42, 43, 53, 54 were read on this motion to/for LEAVE TO FILE AMICUS BRIEF. Upon the foregoing documents, the motions are decided as follows:
Plaintiffs, a group of unions representing various police officer units in and around the City of New York, commenced the instant action by the filing of a Summons and Complaint on August 5, 2020. As described in plaintiffs' Complaint, "this case challenges the City's enactment and prospective enforcement of Section 10-181 of the New York City Administrative Code ("Section 10-181"), passed by the City Council on June 18, 2020, and signed into law by Mayor Bill de Blasio on July 15, 2020. Section 10-181 criminalizes the use of any restraint that restricts 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, in the course of effecting or attempting to effect an arrest.'"
On August 8, 2020, plaintiffs filed the instant Order to Show Cause seeking, pursuant to CPLR §§ 6301 and 6311, a preliminary injunction to enjoin Defendant from enforcing Section 10-181 of the New York City Administrative Code pending the hearing and determination of this action, arguing that (1) the section is preempted by Section 121.13-a of the New York State Penal Law and (2) that the section is unconstitutionally void for vagueness and as such violates due process. The Court received the Defendant's opposition. Plaintiffs reply and Oral argument was heard on September 22nd.
On September 17, 2020, New York City Councilman Rory I. Lancman filed an Order to Show Cause seeking amicus curiae status and leave of the Court to file a brief in opposition to Plaintiffs' motion seeking a preliminary injunction to enjoin Defendant from enforcing Section 10-181 of the New York City Administrative Code pending the hearing and determination of this action. Said Order to Show Cause was made returnable on September 22nd although the Court indicated to all sides, at the commencement of oral argument, that the potential amicus curiae brief could be adjourned to determine if same warranted consideration. At oral argument on the motions, neither side objected to the Court accepting the proposed affirmation in support of amicus curiae status and in opposition to plaintiffs' motion for a preliminary injunction. Plaintiffs specifically indicated that they had no need to respond to same. As such, that motion is granted and the affirmation will be considered in opposition to plaintiffs' motion.
At the outset the Court recognizes the seriousness of the matters being addressed. The need to protect both police officers and the public is a vital and fundamental function of society and it is essential that sufficient safeguards exist to allow officers to safely perform their duties while ensuring the safety of the general public and individuals being taken into custody.
Preliminary Injunction
A preliminary injunction is appropriate when the party seeking injunctive relief establishes: (1) likelihood of ultimate success on the merits; (2) irreparable injury if the injunction is not granted; and (3) a balancing of the equities in its favor. See Four Times Square Assocs., L.L.C. v. Cigna Investments, Inc., 306 A.D.2d 4, 5 (1st Dep't 2003) (citing Grant Co. v. Srogi, 52 N.Y.2d 496, 517 (1981)); CPLR §§ 6301, 6311. The elements to be satisfied must be demonstrated by clear and convincing evidence. Liotta v. Mattone, 71 A.D.3d 741 (2nd Dep't, 2010). However, the moving party is only required to make a prima facie showing of its entitlement to a preliminary injunction, not prove the entirety of its case on the merits. The decision to grant a motion for a preliminary injunction "is committed to the sound discretion of the trial court." N.Y. Cnty. Lawyers' Ass'n v. State, 192 Misc. 2d 424, 428-29 (Sup. Ct. N.Y. Cnty. 2002); see also Terrell v. Terrell, 279 A.D.2d 301, 304 (1st Dep't 2001). "'[W]here the constitutionality of [a] regulation has been implicated, the nature and purpose of the regulation sought to be tested is not disputed and the only questions involved are those of law . . . equity should not hesitate to define the rights of the parties.'" Ulster Home Care Inc. v. Vacco, 255 A.D.2d 73, 77 (3d. Dep't 1999) (quoting New York Foreign Trade Zone Operators v. State Liq. Auth., 34 N.E.2d 316, 319 (N.Y. 1941)).
Plaintiffs seek to meet the first prong of the test to obtain a Preliminary Injunction (the likelihood of ultimate success on the merits) by claiming that the New York City statute in question is pre-empted by State law and/or is a violation of plaintiffs' rights to due process.
Preemption
"Broadly speaking, State preemption occurs in one of two ways—first, when a local government adopts a law that directly conflicts with a State statute and second, when a local government legislates in a field for which the State Legislature has assumed full regulatory responsibility" (DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 95 [2001]; Eric M. Berman, P.C. v. City of New York, 25 N.Y.3d 684, 693 [2015]). Here, plaintiffs contend that Section 10-181 is invalid under both doctrines "(1) because the State Legislature occupies the entire field of permissible force used by police officers effecting arrests, especially for restraints that obstruct breathing or blood circulation in carrying out an arrest; and (2) because Section 10-181 directly conflicts with the State Penal Law."
Field Preemption
As discussed in Vatore v. Comm'r of Consumer Affairs of City of New York, 83 N.Y.2d 645, 649 (1994), "Where the State has preempted an entire field, a local law regulating the same subject matter is inconsistent with the State's interests if it either (1) prohibits conduct which the State law accepts or at least does not specifically proscribe (see, New York State Club Assn. v. City of New York, 69 N.Y.2d 211, 221, affd. 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1; Monroe- Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 683), or (2) imposes restrictions beyond those imposed by the State law (see, Robin v. Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 350-352)." The State's intention to preempt an entire field need not be specified in a law as "preemptive intent, however, may be inferred from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme" Vatore at 649, (see, Albany Area Bldrs. Assn. v. Town of Guilderland, 74 N.Y.2d 372, 377; Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99). Where such preemptive intent exists, the locality may not legislate "unless it has received 'clear and explicit' authority to the contrary." People v. De Jesus, 54 N.Y.2d 465, 469 (1981). A "local law will not be preempted by implication unless the state has clearly shown a desire to preempt an entire field thereby precluding any further regulation." Patrolman's Benevolent Assn. of the City of N.Y., Inc. v. City of N.Y., 142 A.D.3d 53, 58 (1st Dep't 2016).
Plaintiffs argue that Section 10-181 is field preempted by the newly enacted Section 121.13-a of the New York State Penal Law (same was signed into law on June 12, 2020), entitled "Aggravated strangulation" which provides that "A person is guilty of aggravated strangulation when, being a police officer as defined in subdivision thirty-four of section 1.20 of the criminal procedure law or a peace officer as defined in section 2.10 of the criminal procedure law, he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, or uses a chokehold or similar restraint, as described in paragraph b of subdivision one of section eight hundred thirty-seven-t of the executive law, and thereby causes serious physical injury or death to another person."
Plaintiffs argue that even though there is no specific statutory language preempting localities from legislating on the subject of chokeholds that the legislative history and regulatory text clearly indicate that the state intended to preempt such legislation. In support of same, plaintiffs submit a New York State Assembly Legislative Committee Report, dated March 6, 2019, which includes specific justifications for the passage of 2019 New York Assembly Bill No. 6144. Specifically, in 1993, the NYPD completely banned the use of chokeholds by its officers. Despite this ban, the legislature highlighted the deaths of Anthony Baez in 1994 and Eric Garner in 2014 as evidence that "it is obvious that the NYPD is either unable or unwilling to enforce its own employee manual. The use of chokeholds has resulted in too many deaths. Criminal sanctions must be established for those who continue to disregard this banned procedure."
While plaintiffs have established that the state law was enacted as a result of several high profile deaths, which received national attention, and specifically highlights that the NYPD continues to face the unsolved issue related to the use of any chokeholds, there is nothing in the legislative history which indicates that the state legislature intended to preempt other legislative remedies. Where, as here, the State legislature has not indicated that it intends to preclude any "additional, not inconsistent legislation," a local law that is consistent with the State's legislative objective is not preempted. McDonald v. N.Y. City Campaign Fin. Bd., 117, A.D.3d 540, 541 (1st Dep't 2014) (holding that contribution limits in the State Election Law do not preempt the local Campaign Finance Act). As plaintiffs have not made a prima facie showing that the state intended to preempt all other chokehold legislation, plaintiffs are not entitled to a preliminary injunction based upon field preemption.
Conflict Preemption
A local law is "inconsistent" and therefore preempted by state law where it "prohibit[s] what would be permissible under State law . . . or impose[s] prerequisite additional restrictions on rights under State law . . . so as to inhibit the operation of the State's general laws." Consolidated Edison Co. of N.Y., 60 N.Y.2d at 108.
Plaintiffs argue that "Section 10-181 is conflict-preempted because it is inconsistent with and inhibits the operation of State Penal Law. The State law defines and criminalizes the obstruction of breathing or blood circulation by police officers, and necessarily encompasses use of such force in effecting or attempting to effect an arrest. Such obstruction, as defined in Section 121.11, includes application of 'pressure on the throat or neck of such person' or blocking 'the nose or mouth of such person' with 'intent to impede the normal breathing or circulation of blood of another person.' N.Y. Penal Law § 121.11. Additionally, Section 837-t(1)(b) of the New York State Executive Law requires conduct to be reported if an officer 'uses a chokehold or similar restraint that applies pressure to the throat or windpipe of a person in a manner that may hinder breathing or reduce intake of air.' N.Y. Exec. Law § 837t(1)(b)." Plaintiffs further argue that Section 10-181 criminalizes the same conduct but is preempted because it imposes different requirements on police officers as it lacks an intent and injury requirement present in the state law felony statute and as such, criminalizes conduct that would not be illegal under the state law. Defendants contend that the two laws work in tandem as Section 10-181 criminalizes similar conduct, but in the form of a misdemeanor, rather than a felony, barring the use of chokeholds and adding a prohibition against compression of the diaphragm and omitting the requirement of a serious injury. Defendant further highlights Garcia v. New York City Dep't of Health & Mental Hygiene, 31 N.Y.3d 601, 617-18 (2018) where the Court of Appeals "cautioned that reading conflict preemption principles too broadly risks rendering the power of local governments illusory (see New York State Club Assn. v City of New York, 69 NY2d 211, 221 [1987], affd 487 US 1 [1988]). Thus, the 'fact that both the [s]tate and local laws seek to regulate the same subject matter does not in and of itself give rise to an express conflict' (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 97 [1987]; see People v Judiz, 38 NY2d 529, 531 [1976]), and conflict preemption is generally found only "when the State specifically permits the conduct prohibited at the local level" or there is some other indication that deviation from state law is prohibited (New York State Club Assn., 69 NY2d at 222).
Plaintiffs have made neither a showing that Section 10-181 prohibits conduct that is permissible under State law nor that same creates additional restrictions on rights under State law as police officers do not appear to have a right to engage in the prohibited conduct under State law. As such, plaintiffs have failed to make a prima facie showing that Section 10-181 conflicts with State law.
Due Process
As discussed in People v. Mojica, 62 A.D.3d 100, 108 (2nd Dep't 2009), "It is a fundamental requirement of due process that a criminal statute must be stated in terms which are reasonably definite so that a person of ordinary intelligence will know what the law prohibits or commands" (People v. Cruz, 48 N.Y.2d 419, 423-424; see People v. Stuart, 100 N.Y.2d 412, 418-419. The purpose of the requirement is twofold: (1) provide the defendant with "adequate warning of what the law requires so that he may act lawfully," and (2) "prevent arbitrary and discriminatory enforcement by requiring boundaries sufficiently distinct for police, Judges and juries to fairly administer the law" (People v. Cruz, 48 N.Y.2d at 424 [internal quotation marks omitted] ). Thus, A law is impermissibly vague and therefore violates constitutional due process if it does not give a person of ordinary intelligence fair notice of what is prohibited, and does not provide clear enough standards for enforcement, thereby permitting arbitrary enforcement. People v. Stuart, 100 N.Y.2d 412, 420-21 (2003).
Plaintiffs contend that Section 10-181 is void for vagueness because an ordinary police officer will be unable to discern whether an arrestee's diaphragm is being compressed as an internal muscle that contracts when air fills the lungs. Plaintiffs further argue that "the strict liability nature of the offense aggravates the due process problem by increasing both uncertainty from the officer's perspective and the risk of inconsistent and arbitrary enforcement by the legal system. See Colautti v. Franklin, 439 U.S. 379, 395 (1979), overruled on other grounds, United States v. Cook, 970 F.3d 866 (7th Cir. 2020) (absence of scienter requirement rendered statute "little more than 'a trap for those who act in good faith'") (citation omitted); see also Morissette v. United States, 342 U.S. 246, 250-52 (1952) (intent considered "so inherent in the idea of" a criminal offense "that it required no statutory affirmation"). Plaintiffs argue that "In light of the lack of mens rea and injury requirements, unintentional violations of the law in effecting or attempting to effect an arrest—and uses of restraints consistent with department policies and State law—will expose officers to criminal liability"
In support of this argument, plaintiffs submit the affidavits of Daniel S. Wilson, Chief of Police of the South Nyack-Grand View Police Department, John J. Mueller, Commissioner of the City of Yonkers Police Department, Joseph P. Castelli, Chief of The White Plains Police Department, Paul DiGiacomo, President of the Detectives' Endowment Association of the City of New York, Keith Olson, President of the Yonkers Police Benevolent Association, Ronald R. Pierone, Acting President of the New York State Police Investigators Association, Local No. 4 of the International Union of Police Associations, AFL-CIO, Patrick J. Ryder, Commissioner of the Nassau County Police Department, together with public comments made by the District Attorneys for New York and Richmond Counties and a transcript of the testimony of NYPD Deputy Commissioner Benjamin Tucker and Assistant Deputy Commissioner Oleg Chernyavsky before the New York City Council's Committee on Public Safety on June 9, 2020. The affidavits and related materials are functionally identical in their objections to Section 10-181. The Court notes that none of plaintiffs supporting proofs even suggest that the portion of Section 10-181 banning chokeholds is in any way vague and that plaintiffs' arguments relate solely to the portion banning compression of the diaphragm.
All of the submitted affidavits contain the following three paragraphs or a very similar set of allegations:
As I understand it, this law exposes officers to criminal prosecution even if, in effecting or attempting to effect the arrest of an individual, including those who are armed, dangerous, or resisting arrest, they place pressure on the individual's chest or back without intent to "restrict the flow of air or blood" or "compress the diaphragm." I understand that officers are also exposed to criminal prosecution even if the individual suffers no bodily injury.
Our officers are trained and entrusted with the responsibility to protect the public. Often, officers must restrain individuals who pose a danger both to the officer and the general public, including persons who are armed, dangerous, or resisting arrest. In such circumstances, officers may be required to restrain someone by placing some type of pressure to the chest or back of the person. Under Section 10-181, however, such restraints-regardless of officers' intent, the duration of time the individual is restrained, and whether they suffer any injury-expose our officers to criminal prosecution.
Section 10-181 has made officers' jobs all the more dangerous by exposing us to criminal prosecution should we, consistent with our training and policies, place pressure on an individual's back to safely carry out an arrest.
The Court notes that the statute specifically restricts sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm and contains no injury requirement. As established by plaintiffs and undisputed, the diaphragm is the internal muscle responsible for the operation of the lungs.
Defendant, in opposition contends that the law is not vague, but simply presents a training issue as officers can be trained on the location of the diaphragm and how not to compress same in the effectuation of an arrest. See People v. Taylor, 63 Misc. 3d 897, 899 (Queens Cty., Crim. Ct., Apr. 17, 2019). In furtherance of this point, defendant and the amicus brief highlight the 2013 version of the NYPD Patrol Guide, Section 203-11, which provides "Whenever possible, members should make every effort to avoid tactics, such as sitting or standing on a subject's chest, which may result in chest compression, thereby reducing the subject's ability to breathe." The NYPD Patrol Guide, Section 202-02, which was in effect at the time of Section 10-181's passage, provides that officers are to "avoid actions which may result in chest compression, such as sitting, kneeling, or standing on a subject's chest or back, thereby reducing the subject's ability to breathe." Almost completely mirroring the statutory language in question.
Plaintiffs further contend that the lack of a mens rea or injury requirement exacerbates the vagueness problem. While neither is a requirement to pass a due process challenge, see, Penal Law § 15.10., ("The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing."). It cannot be disputed that the use of a chokehold and the act of sitting, kneeling, or standing on a subject's chest or back are voluntary acts as described in § 15.10 and as such, the lack of a mens rea requirement is not an issue, however as the law lacks an injury requirement, the argument that officers will be unable to determine if they are "compressing the diaphragm" remains valid.
The Plaintiffs' due process argument clearly establishes a prima facie showing of a likelihood of ultimate success on the merits as the statute's wording appears unconstitutionally vague. The statue offers no guidance on how an officer is to determine whether his or her actions are causing a suspect's diaphragm to be compressed, especially in light of the lack of an injury requirement. Defendant's response that same can be addressed in training lacks sufficient substance to be viewed as a compelling argument at this juncture. Although, the Court further notes that Penal Law § 35.30 provides a justification defense for both the State and Local law, such considerations are irrelevant to whether the challenged law is unconstitutionally vague. As such, plaintiffs have established a prima facie showing of vagueness as it relates to compression of the diaphragm compression without an injury requirement. The Court must therefore proceed to the second prong of the test, irreparable harm.
Irreparable Harm
Plaintiffs contend that absent the imposition of a Preliminary Injunction, that (1) officers will be deprived of their due process rights, which in and of itself is an irreparable harm and (2), Section 10-181 will result in and already has resulted in harm to officer and public safety by deterring officers from engaging in law enforcement activities consistent with State law.
As reference supra, plaintiff submitted seven affidavits in support of its motion, highlighting that of Paul DiGiacomo, the President of the Detectives' Endowment Association of the City of New York who alleges that Section 10-181's criminalization of "the type of force that, consistent with department training . . . often is necessary to safely carry out an arrest, no matter how briefly that force is utilized and regardless of the officers' intent or any resulting injury . . . makes the jobs of officers . . . all the more dangerous, and places both those officers and the public . . . in harm's way." Plaintiffs further highlight that officers of police departments surrounding the City of New York have recently been prohibited by directives issued by their respective departments from conducting enforcement activity within the City of New York based upon the risk of prosecution posed by Section 10-181. Plaintiffs also argue that confusion by officers in life or death situations could have dire consequences for police officers, crime victims, and/or detainees, any of which raise the risk of irreparable harm.
In opposition, defendants contend that the potential harm of the prosecution of a police officer under Section 10-181 is purely speculative in that, to date, no officer has been arrested or prosecuted under the new law. Defendant contends that there is no showing of irreparable harm in that "the movant must establish not a mere possibility that it will be irreparably harmed, but that it is likely to suffer irreparable harm if equitable relief is denied." See GFI Sec. LLC v. Tradition Asiel Sec., Inc., 21 Misc.3d 1111(A) (Sup. Ct. N.Y. Co. July 28, 2008) (citing Natsource LLC v. Paribello, 151 F.Supp 2d 465, 469 (S.D.N.Y. 2001); Golden v. Steam Heat, Inc., 216 A.D.440, 442 (2d Dep't 1995) (holding that the "irreparable harm must be shown by the moving party to be imminent, not remote or speculative."). Defendant further argues that any damages to a police officer who is theoretically arrested or prosecuted under the new law is compensable by money damages and therefore an injunction is inappropriate. See Trump on the Ocean, LLC v. Ash, 81 A.D.3d 713, 717 (2d Dep't 2011) (citing Mar v. Liquid Mgt. Partners, LLC, 62 A.D.3d 762, 763 (2d Dep't 2009); EdCia Corp. v. McCormack, 44 A.D.3d 991, 994 (2d Dep't 2007); SportsChannel Am. Assoc. v. National Hockey League, 186 A.D.2d 417, 418 (1st Dep't 1992).
The court finds that Plaintiffs allegations of "irreparable harm" are entirely speculative and without merit. While plaintiffs contend that their due process rights are violated by the existence of the challenged statute, the reality of the situation is the opposite. An officer, theoretically arrested under the challenged statute, would still retain all of their due process rights to challenge the statute, whether in this Court or before the Judge assigned to said criminal trial. Plaintiffs vague allegations that the law criminalizes conduct in line with said officers' training and that confusion by officers in life or death situations could have dire consequences for police officers, crime victims, and/or detainees are also entirely speculative. Finally, the affidavits submitted by plaintiff highlighting that officers of police departments surrounding the City of New York have recently been prohibited by directives issued by their respective departments from conducting enforcement activity within the City of New York are insufficient to establish irreparable harm as they are unilateral decisions by those departments based upon speculation and as discussed supra arguably an intentional misreading of the law in question. As such, plaintiffs have not established a prima facie case of "irreparable harm." As plaintiffs have failed to establish "irreparable harm," it is unnecessary for the Court to reach the remaining prong and to consider a balancing of the equities.
Based on the above the court hereby denies Plaintiffs motion seeking a preliminary injunction in its entirety. 10/5/2020
DATE
/s/ _________
LAURENCE L. LOVE, J.S.C.