Police Abuse

Treating All Neck Restraints As Deadly Force Would Help Curtail Police Brutality

That uniform rule is different from the policies favored by Donald Trump and House Democrats.

|

George Floyd's suffocation by Minneapolis police has focused renewed attention on potentially lethal neck restraint techniques, an issue addressed both by the executive order on "safe policing" that President Donald Trump issued today and the package of reforms that House Democrats introduced last week. Those two measures differ in scope, and both depart from what is probably the best approach: treating all neck restraints as a use of deadly force that can be justified only in special circumstances.

Neck restraints, which aim to subdue a suspect and/or render him unconscious, fall into two categories: respiratory neck restraints, which cut off air flow by applying pressure to the larynx and trachea, and vascular neck restraints, which cut off blood flow to the brain by applying pressure to the carotid arteries. Although both kinds of restraints are commonly known as "chokeholds," that term, strictly speaking, applies only to the first kind, which is more dangerous even when performed properly.

In practice, however, the distinction between the two kinds of techniques can be fuzzy. A vascular restraint can easily become a chokehold if the officer's technique is sloppy or if his arm slips as he struggles with a suspect who is actively resisting or reacting involuntarily to the maneuver.

Trump's order instructs the attorney general to "allocate Department of Justice discretionary grant funding" only to state and local law enforcement agencies that seek certification from "independent credentialing bodies." One criterion for certification is that the agencies "prohibit the use of chokeholds—a physical maneuver that restricts an individual's ability to breathe for the purposes of incapacitation—except in those situations where the use of deadly force is allowed by law." In the 1985 case Tennessee v. Garner, the Supreme Court said the Fourth Amendment, which prohibits "unreasonable" seizures, allows police to use deadly force only when they have "probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."

On the face of it, Trump's definition of chokehold is limited to techniques that deliberately restrict air flow "for the purposes of incapacitation," meaning it would not include vascular neck restraints that can unintentionally obstruct breathing when used improperly. It might not even apply to the idiosyncratic technique that now-former Minneapolis police officer Derek Chauvin used when he kneeled on Floyd's neck for nearly nine minutes. While it's not clear what Chauvin's intent was, that maneuver, notwithstanding its deadly effect, presumably would not qualify as a chokehold under Trump's order if Chauvin was trying, however ineptly, to compress Floyd's carotid arteries rather than prevent him from breathing.

The policy that the Minneapolis Police Department adopted after Floyd's death, by contrast, prohibits "the use of all neck restraints or choke holds for any reason." The House Democrats' Justice in Policing Act takes a similar approach. It would prevent a state or local government from receiving two kinds of law enforcement grants unless it has a law that bars police from using "a chokehold or carotid hold." That phrase is defined as "the application of any pressure to the throat or windpipe, the use of maneuvers that restrict blood or oxygen flow to the brain, or carotid artery restraints that prevent or hinder breathing or reduce intake of air of an individual."

Anna Swanson, an attorney and Houston police officer, recommends a mixture of those two approaches in a 2016 South Texas Law Review article. "All types of neck restraints have the potential to cause death, and have caused death in various incidents," she writes. "In light of the risk and reality of death, chokeholds and neck restraints of any type should be classified as deadly force….Neck restraints should be viewed in the same light as firearms because both have the potential for fatal outcomes each time they are used."

The Supreme Court passed up an opportunity to clarify the constitutionality of neck restraints in 1983, when it ruled that a chokehold victim did not have standing to seek an injunction against the Los Angeles Police Department's use of the technique. Swanson's description of the case, Los Angeles v. Lyons, vividly communicates the trauma inflicted by neck restraints even when they are not fatal:

Adolph Lyons was placed in a chokehold by Los Angeles police during a traffic stop on October 6, 1976, which rendered him unconscious and caused damage to his larynx. Mr. Lyons was pulled over due to a burned out tail light, told to exit his vehicle, slammed on the hood of the police car and when Mr. Lyons complained of pain, the officer put his forearm around his throat and began to choke him. The chokehold was applied to Mr. Lyons until he blacked out. When Mr. Lyons regained consciousness he was on the ground, gasping for air, spitting up blood and dirt, and had urinated and defecated on himself. After Mr. Lyons regained consciousness, police issued him a traffic citation and he was released.

While conceding that "Lyons may have been illegally choked by the police," the Supreme Court declined to determine whether that use of force was constitutional, saying only that the injunctive remedy Lyons sought was not available to him. Since then, federal appeals have ruled that chokeholds are reasonable under the Fourth Amendment in some situations, primarily when the suspect is violently resisting and/or has a history of doing so, and unreasonable in others, primarily when those circumstances are lacking.

Because of Lyons, the remedies in the latter cases have been limited to damages, leaving police departments free to continue their preexisting neck-restraint practices as long as they are willing to pay the occasional victim. And "even though some circuit courts have found the use of neck restraints to be an unreasonabl[y] severe use of force," Swanson notes, "neck restraints and chokeholds are still used to detain suspects who give minimal or no resistance to law enforcement."

Most state legislatures have not imposed limits on neck restraints. And while some police departments have, those policies—the solution favored by Trump's order—are not necessarily effective. "Even when the use of chokeholds is prohibited by police department policy," Swanson writes, "chokeholds are still used in situations where officers are not threatened with serious bodily injury or death, as demonstrated by the Eric Garner incident in 2014."

Neither court rulings, local and state laws, nor department policies have established the uniform rule that Swanson favors, which would treat neck restraints the same as firearms in use-of-force cases. "A total ban is an extreme response that is not practical in the context of policing where the use of lethal force is constitutionally reasonable under circumstances where officers are faced with imminent serious bodily injury or death," she argues. "Thus, legislation that limits the use of chokeholds to situations where deadly force is required are the more practical, and constitutionally sound, legislative attempts at addressing law enforcement use of neck restraints."

Through court rulings and/or legislation, Swanson recommends, "all types of neck restraints should be categorically deemed a use of deadly force and only found reasonable in situations that merit the use of deadly force." She adds that if Lyons were overturned, courts would have more power to address the issue. "When an ongoing, unconstitutional practice of police use of force results in death," Swanson says, "the federal courts should have the power to stop it through the ability to enjoin and scrutinize the potentially unconstitutional practice." She also suggests that the Justice Department encourage tighter restrictions on neck restraints through "pattern or practice" litigation under 42 USC 14141.

"People have been harmed and killed by neck restraints for decades," Swanson writes. "History reflects the need for neck restraint use by law enforcement to be addressed on a national level."

Update, June 17: The reform package favored by Senate Republicans, dubbed the Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act, includes a neck restraint provision very similar to what Trump already has done. The bill would prevent law enforcement agencies from receiving COPS or Byrne grants unless they have policies prohibiting "the use of chokeholds except when deadly force is authorized." It defines chokehold as "a physical maneuver that restricts an individual's ability to breathe for the purposes of incapacitation." The bill says "George Floyd's death has become a flashpoint to compel the need to address the use of chokeholds." But for the reasons I note above, it's not clear that the definition would cover the maneuver that killed him.

Advertisement

NEXT: Senator Hawley: Bostock "represents the end of the conservative legal movement"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “All types of neck restraints have the potential to cause death, and have caused death in various incidents,” she writes. “In light of the risk and reality of death, chokeholds and neck restraints of any type should be classified as deadly force….Neck restraints should be viewed in the same light as firearms because both have the potential for fatal outcomes each time they are used.”

    We need to be real careful with where we allow academics to define what kind of holds you can put on someone when trying to restrain them.

    Here’s a talk between Joe Rogan and Jocko Willink discussion choke holds– both trained MMA fighters are very adamant that if you “ban the chokehold” the only way to restrain someone is to inflict “blows to the head”.

    Willink then goes into a long explanation on how officers are minimally trained in martial arts and de-escalation. The problem isn’t the chokehold, it’s the chokehold for 9 minutes that’s the problem. Something that’s not deadly if used briefly and sparingly can become deadly if overused or misused.

    1. And this last part should be in bold: Neck restraints should be viewed in the same light as firearms because both have the potential for fatal outcomes each time they are used.”

      This is a classic case of context-loss. A chokehold should never be placed in the same light as a firearm. A firearm does one thing, and one thing only: ejects a lead projectile at near, or supersonic speed with a significant amount of penetrating force. If firearms and chokeholds were “in the same light” then we’d be watching firearm cage matches on pay-per-view.

      1. I am now making extra $19k or more every month from home by doing very simple and easy job online from home. I have received exactly $20845 last month from this home job. Join now this job and start making extra cash online by follow instruction on the given website.

        This is what I do………Money80

    2. I trust Joe “Smoke DMT” Rogan. Cops should use their batons on suspects until they submit to authority. Remember kids, respect is earned.

      1. In CHAZ, they’ve banned the chokehold with great success. The way the authorities in CHAZ subdue someone is blows to the head. Many much progressive and social justice is performed in CHAZ every of the day.

        1. So the beatings have improved morale?

          1. Not yet, but they will eventually.

            1. Victoria Richerson have been working from home for 4 years now and I love it. I don’t have a boss standing over my shoulder and I make my own hours. The tips below are very informative and anyone currently working from home or planning to in the future could use these.Make 5000 bucks every month… Start doing online computer-based work through our website.. Reading Articles

        2. Many much progressive and social justice is performed in CHAZ every of the day.

          Did someone hit you in the head as you were attempting to type… whatever it was you were trying to say there?

          Or did you do that on purpose as a joke? If so, well played.

          1. I quit working at shoprite to work online and with a little effort I easily bring in around $45 to 85 per/h. Without a doubt, this is the easiest and most financially rewarding job I’ve ever had.OSd I actually started 6 months ago and this has totally changed my life.

            For more details visit……….Read More

        3. Start earning today from $600 to $754 easily by working online from home. Last month i have generate and received $19663 from this job by giving this only maximum 2 hours a day of my life. Easiest job in the world and ecarning from this job are just awesome. Everybody can now get this job and start earning cash online right now by just follow instructions click on this link and vist tabs( Home, Media, Tech ) for more details thanks…… SeeMore here

    3. Here’s a talk between Joe Rogan and Jocko Willink discussion choke holds– both trained MMA fighters are very adamant that if you “ban the chokehold” the only way to restrain someone is to inflict “blows to the head”.

      They’re not wrong. I think I mentioned in an earlier thread that if you ban the use of chokeholds outright (by which I mean both “air” and “blood” chokes) then you’re probably going to have a lot more cops beating people to death or close to it. The truth is that if you’re trying to subdue someone who’s violent there’s not a lot of good ways to do it without hurting them, but a properly executed “vascular restraint” such as the rear naked choke that’s taught in MMA or BJJ is probably one of the safer ways to do it.

      But the key phrase there is “properly executed.” And Willink is correct that most cops really don’t have that much hand to hand or martial arts training or anything like that. They’re not the highly skilled combatants that many people assume they are. They might get a few days of training while at the police academy and maybe a week or so of refresher training a year, if that. I probably have about as much training on how to do a rear naked choke as the average cop and I wouldn’t feel comfortable attempting it in an actual fight.

      1. All of this. They don’t get anywhere near the grappling time or training that people think. And with their sticks getting, if not taken away, then restricted, it starts to really cut down their options in taking into custody someone who really, really doesn’t want to go to jail.

        AIUI, for physical compliance methods nowadays, they get taught OC spray –> Taser –> Gun. Pepper spray/OC spray, doesn’t work a lot of the time, and has a bunch of side effects (like most chemical weapons). So that leaves the Taser, and is why there’s a bunch of ‘used the taser 15 times’ and more in news cases.

        Yeah, they should probably all practice BJJ or the like in their free time. They should also meet height/weight requirements, LOL.

        No idea if using techniques from that discipline or other martial arts, that weren’t officially trained to that officer, ends up harming them during the seemingly inevitable civilian complaint process and/or civil suit alleging excessive force.

        1. Unfortunately, the narrative currently makes the possibility of better training in any hand to hand impossible.

      2. What methods are used by unarmed Bobbies in England? Is there less resistance to arrest for some reason?

        1. Running in the opposite direction of danger, of course.

        2. They don’t need to do anything: like most people in the US, Brits just obey the police, because they understand that running away or resisting arrest has serious consequences even if one isn’t shot at.

        3. The method of only adding a violent crime to the stats if it gets solved

    4. I was watching that today too. They go on to support an idea that all cops achieve at least a purple belt in BJJ, which also is an interesting idea.

      1. Hi if you want to win iphone11 check this amazing link… https://winphone11.com

    5. Some, like Jacob, forget that there are 120lb. women who are cops that just might need to use a “neck restraint” to control a 300lb. violent perp.

    6. For one thing knee on neck is a restraint, not a choke hold. Second, it’s used probably every day in nations across the world without killing people, there is nothing inherently dangerous about it. Third, Floyd wasn’t strangled, he had a heart attack which began before a knee was on his neck, the police mistook the heart attack for resistance.

  2. I put a lot of the blame on science fiction whose cops have fictional foam guns, net guns, ray guns, etc, which magically and harmlessly render people quiescent in seconds. I’m guessing lots of people thought of tasers and other stun guns, even pepper spray, as in that category.

    The problem of course is that anything which removes self-control from someone leaves them under either no control (they fall face-down onto pavement, hit their head on a curb, fall into water) or under the imperfect control of cops who don’t give a shit and do stupid things like maintain the restraint far too long and the guy dies because no one is breathing for him.

    The only real solution is deadly force ONLY when vital, such as the guy is waving a gun around, and otherwise back off, surround him talk him down, de-escalate, and treat him as an angry confused person who needs help Cops are only good at the first choice, and as long as they are not held accountable for choosing badly, they will continue to prefer choosing badly.

    1. “otherwise back off, surround him talk him down, de-escalate, and treat him as an angry confused person who needs help”

      I’m curious as to the reality of this situation.
      How should the Reyshard Brooks situation have played out in your ideal world (stipulating that Brooks behavior is the same as it was)?

      1. I’m curious if you think there was any justification for them NOT backing of in the case of the old man who accidentally triggered a false alarm on his Life Alert.

        PS I think that family should sue Live Alert as well as the cops.

      2. There are a zillion different cases. From what I have read, 99% of the time cops could just back off and cordon the immediate area.

        No-knock raids are an immensely profitable area to back off. I have not read of a single one that could not have been handled by busting the suspects when they were out and about.

        Floyd — what was served by going so gung ho? They knew who he was, where he lived. Nothing made deadly force applicable. Garner in NYC — no need. Just a bunch of thugs looking for trouble, that is all the cops were.

        1. Yall mentioned 3 other people but not the one I asked about.

          Banning no knocks is good. Don’t know the appropriate mechanism, but I’d like to see them banned or strongly curtailed nationwide.
          I agree on Floyd and Garner. Cops went way overboard there, and unjustly killed those men.

          But what about Brooks? He resists arrest, fights with the cops, then runs – what should the cops have done?

          If you think cops should let perps go every time someone resists… aren’t you encouraging everyone to resist, regardless of crime?

          1. What does “cordon the area” consist of?
            How many officers does it take?
            What about the other people in the area?
            One might expect the number of hostage situations to sky rocket as an unintended consequence, no?

            1. Go ahead and play dumb if it makes you feel better. Pretend to not know what “cordon off” means, or “99%”, or other ordinary English.

              1. Don’t get bitchy because you don’t have a good answer.
                Think through your ideas and be better

          2. If you think cops should let perps go every time someone resists… aren’t you encouraging everyone to resist, regardless of crime?

            Are you encouraging cops to kill someone rather than let them go and then find them later? If those are the only two choices at the time, your choice is death?

            1. As opposed to creating a situation where every single attempt at arrest leads to a fight and the perp getting away?
              Maybe.
              Never pursuing leads to more conflict.
              It’s weird that this is so hard for some of you

    2. “…Under the imperfect control of cops who don’t give a shit and do stupid things like maintain the restraint far too long and the guy dies because no one is breathing for him.”

      For the LVNR technique I’ve mentioned here, it states that an officer, and preferably a medical professional, watch the subject of the technique for a minimum of two hours since application. Think that’s happening often? Maybe it is, if his ass is carted off to the ER afterwards?

      It can be easy to screw up a neck hold and really hurt someone.

    3. The only real solution is deadly force ONLY when vital, such as the guy is waving a gun around, and otherwise back off, surround him talk him down, de-escalate

      What reason would he have had to surrender or “de-escalate”? He knew he was up for many years of prison because of his priors, and he had already shown himself to be a violent criminal.

      How do you propose catching him? How many hundreds of civilians are you willing to put at risk in the process? How much money are you willing to spend on every violent criminal who chooses to run from police?

    4. You make a number of incorrect assumptions. First that he was strangled, he actually had a heart attack that started before he even was taken to the ground, the knee on neck didn’t kill him. Second is that deadly force was used, this restraint has been used for years by every police force in the world without killing people. You sound like the people who insist that firearms are in and of themselves simply death devices and should never ever be allowed to be used.

  3. Putting vascular restraints into the same category as firearms is ridiculous. The vast number never result in any injury, something you cannot say for gunshot wounds. Vascular restraints cut blood flow and CAN be deadly if the suspect is resisting and the hold cannot be put on correctly. But the suspect usually dies because he is on drugs and is working at 120% of capacity until he collapses. A cop cannot shoot someone and then explain that he did so only because the vascular restraint which, based on his own experience, is less than lethal was banned by his department. The only safe option for the cop is to simply let the suspect get away.

    1. “A cop cannot shoot someone and then explain that he did so only because the vascular restraint which, based on his own experience, is less than lethal was banned by his department. The only safe option for the cop is to simply let the suspect get away.”

      Right?
      At which point, the right move becomes to ALWAYS resist arrest.
      Doesn’t seem like a tenable position

    2. Some ideas are so dumb only intellectuals believe them. I’d like to give any academic that suggests that neck restraints and Firearms are in the same category and provide them with a choice. I will offer to attempt to restrain them, using either a neck restraint or firearm, and then let them choose which tool I get to use in the demonstration.

  4. Treating All Neck Restraints As Deadly Force Would Help Curtail Police Brutality

    This is an argument about police procedure, and while it may have merit, it misses the forest for the trees.

    The fundamental problem is identifying and rooting out bad actors among the police. Under the guise of protecting good faith police action, bad actors have accumulated far too much cover in the form of QI, the police unions, and employment record secrecy.

    Way too many politicians will seize on choke holds as a way out, pass laws banning choke holds, and then wipe their hands and declare “problem solved”.

    1. Way too many politicians will seize on choke holds as a way out, pass laws banning choke holds, and then wipe their hands and declare “problem solved”.

      Yep, they’re looking for a nice, quick, easy panacea instead of addressing the real problems. IOW, what they always do.

    2. This cannot be stated enough. It essentially says we’re going to allow the Bad actors to remain on the police force ( because they’re Untouchable due to Union protections ;-)) but just create more and more Byzantine procedures to keep future bad actions from occurring from the Bad actors.

  5. What do you think the chances are that the result of this will be increased police shootings and other violent acts which are still not “outlawed”. The unintended consequences of this kind emotionally induced blanket ban are great.

  6. Considering Reason hasn’t posted a single article about Reyshard Brooks today, instead of the 5 or so we might expect, i get the feeling that the MSM doesn’t want too much focus on this case.
    They want the story to be “killed for falling asleep while black” but that doesn’t really hold up to any scrutiny beyond the soundbite

    1. If they could feel shame, maybe they’ve been chastened by reading Brooks’s criminal record, at the same time they were running all of those stories about what a great father he was.

      Or maybe the checks cleared to BLM, and BLM told its media contacts to turn down the heat a tad?

    2. I’d rather the collective suffer the consequences of black men driving drunk than risk being publicly called a “racist”.

  7. “George Floyd’s suffocation by Minneapolis police has focused renewed attention on potentially lethal neck restraint techniques, an issue addressed both by the executive order on “safe policing” that President Donald Trump issued today and the package of reforms that House Democrats introduced last week.”

    It seems to me that there’s a lot of “never let a crisis go to waste” blowing around in the wind these days, and I think we should start calling some of it out. For instance, it’s not as if strangling a man to death were legal already. The problem isn’t that strangling George Floyd or anyone else to death is legal. The problem is that the police are largely unaccountable.

    The reason the police are unaccountable is mostly because voters in progressive cities, like Minneapolis, are run by single party governments–which behave like single party states in that they are not responsive to voters. They’re responsive to powerful groups within the party–like the police union.

    The reason cities, like Minneapolis, are run like single party states isn’t because they allow their police to use choke holds. The reason they’re single party governments is because the voters steadfastly refuse to vote for the opposition party–and have refused to do so for generations.

    I wish we could use the murder of George Floyd to convince people to abolish the income tax and Medicaid–things I’ve been trying to persuade people to get rid of for decades. However, they don’t have anything to do with the murder of George Floyd–and banning choke holds isn’t about to solve the problem of cops murdering people and being unaccountable either.

    There is no good substitute for the willingness to vote for opposition parties in a democracy. You must punish the politicians who approve these union contracts, or nothing will change over the long term–choke holds or no choke holds.

    1. Yep. Black lives will matter to Democrats until November, and then it’ll be back to the same old same old until 2022 and the mid-terms.

  8. Oh, and this anti-police hysteria is not the libertarian moment we’ve all been waiting for. When the left doesn’t let this crisis go to waste, it will not be to achieve libertarian ends. There isn’t anything libertarian about the police refusing to protect people’s rights from rioters and criminals.

  9. “Neck restraints should be viewed in the same light as firearms because both have the potential for fatal outcomes each time they are used.”

    “Automobiles should be viewed in the same light as firearms because both have the potential for fatal outcomes each time they are used.”

    “Swimming pools should be viewed in the same light as firearms because both have the potential for fatal outcomes each time they are used.”

    “French fries should be viewed in the same light as firearms because both have the potential for fatal outcomes each time they are used.”

  10. This article was written by someone who has never been in a fight in his life. If this advice becomes law, look for the next series of articles on how police are being brutal, because due to the lack of allowed effective submission holds, they have to beat unruly suspects into submission.

    1. Most critiques and recommendations for police policy are written by people who have never been in or seen a physical confrontation of any kind (except on TV). In their protected fantasy worlds:
      (1) violent behavior, whether by nature or fueled by rage, does not exist
      (2) police and other officials have super powers and magical abilities or technologies (or at least should have)
      (3) when situations become nasty, just asking everybody to be nice does the trick

      1. I quit working at shoprite to work online and with a little effort I easily bring in around $45 to 85 per/h. Without a doubt, this is the easiest and most financially rewarding job I’ve ever had.OSd I actually started 6 months ago and this has totally changed my life.

        For more details visit……….Read More

  11. Chokeholds are a red herring. Real reform would focus on dealing with just a few of these things:

    1. The Supreme Court has said that the police have no duty to act. Think about that the next time someone tells you that the police “put their lives on the line.” They don’t. The SCOTUS has very clearly said that they have absolutely no duty to protect citizens. Their duty is to the State – To enforce State laws in all of their various permutations.

    2. I hate to beat a dead horse, but, something has to be done about qualified immunity. Nobody should have any more immunity than anyone else…especially those responsible for anything to do with criminal justice. This includes those who make the laws, prosecute them and those who enforce them. How incredibly precious is it that the very people tasked with enforcing the law can escape civil liability because they “didn’t know” they were violating the law? For citizens “ignorance of the law no excuse” for the very people who should know the law, though, ignorance is not only an excuse, it is an escape from personal liability. How could any rational, thinking person think that this is ok? A recent court decision granted QI to a cop who shot a 10 year old kid while trying to shoot the family dog because, after all, there was clear case in the past that said shooting an innocent kid while aiming at a non-aggressive dog was a no-no. It is almost like an SNL skit…but it is not. It is real. And it is outrageous.

    3. I have mentioned him before, but, how outrageous is it that tens of thousands of police officers are trained every year by Crazy Dave Grossman. His “Killology” training that tells police that if they kill someone they will have “the best sex of their lives.” Crazy Dave Grossman – who wants every cop to know that people are either “sheep or wolves.” How nice. Turn people into animals…because once you do that, they are much easier to treat as inhuman. And… think about this…it is a no-win situation if a person is an African American because even if they make it to the sheep category, they are black sheep. The name of his training alone, “Killology” is just so sweetly ironic, don’t you think? Yet, Grossman is booked up, by his own admission, 300 days a year, spreading his vitriol and nonsense and doing so into the brains of hardly educated people who have not learned serious critical thinking or analytical skills.

    If just those three things were dealt with we would be in much better shape.

Please to post comments