On June 8, 2020 a bill was introduced in Congress to reform law enforcement practices. Among the items in the legislation is a provision to “ban police use of chokeholds and carotid holds, and conditions funding for state and local departments on barring the practices.”   It is first noted that the introduced legislation does not create a mandatory prohibition against chokeholds or carotid holds but ties federal government purse strings to withhold federal funding from agencies that do not prohibit the practice.

At the outset some distinctions must be made between what is commonly referred to as a choke hold (respiratory) in law enforcement versus the carotid restraint (vascular).

Choke holds in law enforcement have commonly referred to a hold that places pressure on the front of the neck and decreases or stops the person’s ability to take in oxygen.   It should be noted that due to the danger of serious bodily harm or death from these oxygen deprivations holds, which includes the potential of causing damage to the hyoid bone in the front of the throat, most agencies have banned this tactic for many years unless the officer is face with a circumstance where deadly force is justified.  Many agencies have an outright ban on chokeholds.  An example from the Las Vegas Metropolitan Police Department asserts: “Officers will not use an arm bar across the throat, a dangerous or unauthorized chokehold, or any non-approved technique.”

By contrast a carotid restraint does not cut off oxygen but instead puts pressure on the carotid arteries to diminish blood-flow to the brain and where properly deployed will render a subject unconscious in 4-7 seconds.   One form of the carotid restraint which has been trademarked is the “Lateral Vascular Neck Restraint® or LVNR®.  The Las Vegas Metropolitan Police Department policy defining the LVNR® states:

“A Lateral Vascular Neck Restraint® (LVNR®) is a control technique applied to the sides of the neck, using a combination of physiological factors to restrict blood flow to the brain which may cause the subject to lose consciousness.   Level of Control: Intermediate Force- LVNR® all levels.  Disapproved Use and Additional Considerations: LVNR® will not be used on subjects who have been exposed to OC spray or who are experiencing difficulty breathing.  Officers will not use an arm bar across the throat, a dangerous or unauthorized chokehold, or any non-approved technique.  Once the subject is brought under control, the LVNR® will be relaxed.

The Lateral Vascular Neck Restraint was initially developed by the Kansas City Missouri Police because submission generally occurs first.  NLETC also points out that in 40 years of use, there has never been a verified death as the result of the LVNR®.

Until the death of George Floyd in Minneapolis, the Minneapolis Police Department had a policy on both conscious and unconscious neck restraints as well as chokeholds.  Minneapolis defined Choke Hold as a deadly force option ‘Defined as applying direct pressure on a person’s trachea or airway (front of neck), blocking or obstructing the airway.’

The policy went on to define both a conscious and unconscious neck restraint:

“Neck Restraint: Non-deadly force option.  Defined as compressing one or both sides of a person’s neck with an arm or a leg, without applying direct pressure to the trachea or airway (front of neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints:

Conscious Neck Restraint: The subject is placed in a neck restraint with intent to control, and not render the subject unconscious, by only applying light to moderate pressure.

Unconscious Neck Restraint:  The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure.

The Conscious Neck Restraint may be used against a subject who is actively resisting.

The Unconscious Neck Restraint shall only be applied in the following circumstances:

On a subject who is exhibiting active aggression, or;

For life saving purposes, or;

On a subject who is exhibiting active resistance in order to gain control of the subject; and if lesser attempts at control have been or would likely be ineffective.

Neck restraints shall not be used against subjects who are passively resisting as defined by policy.

After Care Guidelines

After a neck restraint or choke hold has been used on a subject, sworn MPD employees shall keep them under close observation until they are released to medical or other law enforcement personnel.

An officer who has used a neck restraint or choke hold shall inform individuals accepting custody of the subject, that the technique was used on the subject.

Thus, some agencies in the United States addressed the issues of chokeholds in policy and training as well as carotid holds.  It should be noted that the Minneapolis policy which authorized the use of legs and contemplated putting pressure on one side of the neck is unique in the experience of these authors.  Consider this language from a study done by the Grand Junction Colorado Police Department on LVNR®: “The vascular neck restraint, to include the Lateral vascular Neck Restraint focuses on compression of the carotid arteries on both sides of the neckAll law enforcement neck restraint systems configure the arms in order to protect the trachea and the airway.” (http://www.nletc.com/files/GJPD–LVNR-Staff-Study.pdf).

As mixed-martial arts and other defensive programs have infiltrated law enforcement defensive tactics there have been cases where officers have indicated that they used a “rear naked chokehold” to control a subject.

Similar to the medical disagreement on positional and compression asphyxia, there has also been disagreement by medical experts, particularly with respect to deaths from carotid (blood flow) holds.

For example, some law enforcement groups have cited to scientific research that indicates that the vascular neck restraint is a valuable law enforcement tool and is not dangerous. For example, in 2012, the Arizona Troopers Association wrote:

For the first time, a scientific research team has used modern technology to confirm just how a vascular neck restraint works to produce unconsciousness. The findings emphatically refute assertions that this valuable control technique is inherently dangerous and potentially lethal.

“With the majority of subjects [in the study] rendered unconscious and, importantly, [with] no serious adverse events in our subjects, we conclude that VNR is a safe and effective force intervention,” writes the lead researcher, Dr. Jamie Mitchell.

He hedges that statement by cautioning that “outcomes could vary” in some populations, such as unhealthy or older subjects, who were not part of the study.

But with young, highly agitated, combative and/or drug- or alcohol-fueled resisters, who are the most likely to warrant VNR in real-life conflicts, Mitchell posited in an interview with Force Science News that the technique may work even faster than it did on the healthy, non-intoxicated volunteers his team tested.

By contrast, an anecdotal presentation by Doctor Bill Smock, the Police Surgeon for the Louisville Metropolitan Police Department, Smock pointed to a number of dangers and cases associated with carotid restraints including numerous cases where officers were significantly injured in training. (https://www.familyjusticecenter.org/wp-content/uploads/2019/04/Law-Enforcement-Risks-of-LVNR-6-Page.pdf).

It should be noted that widely accepted definition of deadly force in the Federal Circuits is that amount/type of force that creates a substantial bodily harm or death.  By way of example there are a handful of cases where a police canine has bitten a subject and they die, however the courts have ruled that this is not deadly force because a lot of suspects are bitten by police dogs but most do not die, thus there is not a substantial likelihood of serious bodily harm or death.

The United States has considered the use of chokeholds/carotid restraint in one case, specifically Los Angeles v. Lyons, 461 U.S. 95 (1983).  Mr. Lyons, who brought a lawsuit alleged that 4 officers and the City of Los Angeles alleging the officers had used a bar arm control hold or carotid-artery-control hold or both on him rendering him unconscious and causing damage to his larynx.  The United States Supreme Court was dealing with Lyons’ request for a permanent injunction to permanently stop the Los Angeles Police Department from the use of these tactics.  The Federal District Court had granted Mr. Lyons a preliminary injunction which ordered the Los Angeles Police Department to stop using these tactics unless deadly force was justified.  The U.S. Supreme Court noted that since Mr. Lyons had filed his claim five deaths had occurred in Los Angeles leading the chief of police to prohibit the bar-arm chokehold in any circumstance and the Board of Police Commissioners place a six month moratorium on the use of the carotid restraint unless deadly force was justified.  The Court did not rule on whether a carotid restraint or a chokehold was unconstitutional, but instead decided that Mr. Lyons could not show a likelihood that he would be subjected to such a tactic by the LAPD in the future and therefore he lacked standing to receive an injunction.

Valenzuela v. City of Anaheim, 2019 U.S. Dist. LEXIS 129976 (Central Dist. Cal., Southern Division, 2019), provides a recent, detailed example of a chokehold (plaintiff’s story) carotid hold (defendant officer’s story) case. The law enforcement involvement was prompted by a call to 911 by a woman who reported that a man, later identified as Valenzuela, and who was acting strangely had followed her mother, Ms. Moya home. It was reported to officers that this suspicious subject was at the corner of Magnolia and West Broadway in Anaheim.  Anaheim officers Jun and Wolfe responded.   The court described the interaction between the officers and Valenzuela as follows:

When Jun and Wolfe arrived to Magnolia and Broadway, they observed a man meeting Enya’s description “abruptly” turn and enter a laundromat. (UMF ¶ 9.) Video surveillance footage from the laundromat shows Valenzuela walking through the laundromat’s front door at a normal pace. (Dkt. 100 Ex. 8.) The officers parked the patrol car in the laundromat parking lot and walked inside. (SUF ¶ 10.) Wolfe later reported that when he first saw Valenzuela, he thought, “If he was going to run, why didn’t he run before? He had plenty of time. So I’m thinkin’ this guy’s going to fight us.” (Dkt. 104 [Defs.’ Response to PAMF, hereinafter “DR”] ¶ 126.) As both officers walked toward Valenzuela, they heard what they believed was a glass methamphetamine pipe breaking. (UMF ¶ 11.) At the time, Valenzuela’s bag was on the floor in front of a washing machine, and he was placing clothing from the bag into the machine. (Id. ¶ 13.) Wolfe asked him: “Howdy, you alright? You break a pipe or something?” [*7] (Id. ¶ 12.) Valenzuela seemingly did not respond. (See id.) Wolfe then observed the handle of a screwdriver in Valenzuela’s bag. (Id. ¶ 15.) Wolfe testified that he became concerned Valenzuela might be armed because of the glass pipe he purportedly heard break and the screwdriver he observed. (Id. ¶ 16.) Wolfe asked Valenzuela to stop reaching into his bag and ordered him to put his hands behind his back. (UMF ¶ 19.) When Valenzuela did not comply, Wolfe grabbed his right arm and started to pull it behind his back. (Id. ¶ 20.) Jun meanwhile attempted to hold Valenzuela’s arms in place from the front. (Id. ¶ 23.) Valenzuela then pulled away and the three of them fell to the floor of the laundromat. (Id. ¶ 24.)

Still on the ground, Jun attempted to control Valenzuela using a neck restraint hold. The parties dispute the type of hold that Jun used. Jun testified that he applied the carotid restraint hold, a technique where bilateral pressure is placed on a subject’s carotid arteries on either side of the neck. (Id. ¶¶ 25, 26, 30.) The purpose of this hold is to restrict blood flow to the brain so that the subject temporarily loses consciousness. (Id. ¶ 26.) Plaintiffs, by contrast, assert [*8] that Jun applied an “air choke hold,” a technique designed to obstruct the subject’s airway and thereby prevent him from breathing. (Id. ¶ 25.) The footage from Wolfe’s body-worn camera shows Jun had his right arm around Valenzuela’s neck for at least twenty-two seconds. (Dkt. 100 Ex.9 at 1:28-1:50.) Jun then alternated his right and left arm around Valenzuela’s neck for another minute and twenty seconds. (Id. at 1:53-2:18.) Based on the video footage, Valenzuela seems to have difficulty breathing and his face appears to turn purple. (See id.) Jun, however, testified that he does not believe he ever cut off Valenzuela’s airway. (UMF ¶ 29.) Wolfe, who closely observed Jun’s conduct, could not identify the type of restraint hold Jun used because he could not tell whether Jun was applying pressure to Valenzuela’s carotid arteries. (Id. ¶ 31.) When Jun loosened his hold, Valenzuela stated, “I can’t breathe.” (Id. ¶ 35.) Valenzuela then pulled Jun’s arm away from his neck, briefly crawled along the floor, and stood up. (Id. ¶ 38.) As he ran toward the laundromat’s front door, Wolfe followed him. (Id. ¶ 42.) When Wolfe got ahold of Valenzuela’s shirt, Valenzuela slipped out of the shirt and [*9] continued running toward the front door. (Id.) Once outside the door, Wolfe tried to secure Valenzuela’s arm as Jun attempted to tase him. (Dkt. 90-1 Ex. K [Jun’s Body-Worn Camera Footage, hereinafter “Jun BWC”] at 3:43-3:57.) Valenzuela again escaped, running toward the laundromat parking lot. (See id.) The struggle continued in the laundromat parking lot. With Wolfe attempting to restrain Valenzuela and Jun pushing his taser into Valenzuela’s chest, Valenzuela fell on his back. (UMF ¶ 46.) While still on the ground, Valenzuela kicked Wolfe in the chest, causing him to go “flying back.” (Id. ¶ 47.)

Valenzuela then fled from the officers, this time across several lanes of traffic on Magnolia Avenue. (Id. ¶ 49.) Now across the street, Valenzuela continued to flee the officers through several commercial parking lots. (Id. ¶ 52.) The officers repeatedly attempted to grab him with no success. Jun kicked him once in the shin. (Id. ¶ 53.) Wolfe struck Valenzuela’s leg twice with his baton. (Id. ¶ 54.) Despite the officers’ repeated commands to “get on the ground,” Valenzuela continued to run. (Id. ¶ 55.) As Valenzuela reached the parking lot of a 7-Eleven, he tripped [*10] on a curb and fell to the ground. (Id. ¶ 56.) Wolfe then got on top of Valenzuela and attempted to roll him onto his stomach. (Id. ¶ 57.) When he could not get Valenzuela on his stomach, Wolfe placed his arm around Valenzuela’s neck to get into position to apply another restraint hold. (Id. ¶ 59.) Meanwhile, Jun took hold of Valenzuela’s right arm. (Id.) As Wolfe got into position, Valenzuela used his left hand to pull Wolfe’s arm away from his neck. (Id. ¶ 60.) Wolfe testified that Valenzuela pulled Wolfe’s finger back so hard that he believed it was going to break. (Id. ¶ 62.) With Jun still holding Valenzuela’s right arm, Wolfe attempted another restraint hold. (Id. ¶ 64.) APD Sergeant Daniel Gonzalez, who heard a request for assistance from Wolfe, arrived to the scene to assist. As Wolfe attempted to apply a restraint hold, Gonzalez took hold of Valenzuela’s left arm while Jun still held his right. (Id. ¶ 65.) The parties again dispute the type of restraint hold that Wolfe proceeded to apply. Gonzalez testified that he observed Wolfe applying a proper carotid restraint that did not place pressure on Valenzuela’s trachea. (Id. ¶ 70.) Plaintiffs contend that Gonzalez’s body-worn camera [*11] shows that Wolfe applied an air choke hold, blocking Valenzuela’s airway. (Id. ¶ 67.) The video footage shows Wolfe’s right arm around Valenzuela’s neck for at least sixty seconds. (Dkt. 100 Ex. 11[Gonzalez’s Body-Worn Camera Footage, hereinafter “Gonzalez BWC”] at 1:01-2:02.) Wolfe believes that much of that time was spent getting in position. (SUF ¶¶ 76-77.) He claims he only applied the actual restraint hold for fifteen to twenty seconds. (Id.) With three officers now holding onto Valenzuela, Gonzalez supervised Wolfe’s application of what both Gonzalez and Wolfe claim was a carotid restraint hold. (PAMF ¶ 175.) Plaintiffs argue that from the footage, it is apparent that Valenzuela is wheezing and having difficulty breathing. (SUF ¶ 60.) Gonzalez testified that he did not observe Valenzuela having difficulty breathing and that even if he had, he would have told Wolfe to continue applying the carotid restraint hold because breathing issues “can be associated with many things.” (PAMF ¶ 137.) Accordingly, Gonzalez twice directed Wolfe to “hold that choke.” (Id. ¶ 161.) When Wolfe eventually loosened his hold but still had his arm around Valenzuela’s neck, he rolled Valenzuela onto [*12] his stomach. (Id. ¶ 78.) Gonzalez then handcuffed Valenzuela’s left arm and asked Wolfe, “Are you letting him breathe?” (Id. ¶ 79.) Wolfe responded that he was. (Id.) Gonzalez ordered the officers to roll Valenzuela onto his side. (Id. ¶ 83.) When Valenzuela did not regain consciousness, Gonzalez ordered the officers to start CPR. (Id. ¶ 84.) It was unsuccessful. Gonzalez then called the paramedics, who transported Valenzuela to Western Anaheim Medical Center. (Id. ¶ 86.) He died there eight days later. (Id.)

It should be noted that the parties dispute whether this was the respiratory chokehold, which is considered by most agencies to be deadly force or the vascular carotid hold which is still used by many agencies in non-deadly force events. Additionally, there is a time/duration of the hold issue, in the second instance, Officer Wolfe reported his belief that his actual restraint was 15-20 second while video shows Wolfe’s arm around Valenzuela’s neck for 60 seconds.  Wolfe said that most of the 60 seconds was him getting in position to execute the restraint.  It should be noted that most training indicates that a properly executed carotid restraint will render a person unconscious in 4-7 seconds thus a sixty second restraint would clearly be outside of proper training.

The medical examiner in this case while acknowledging that Valenzuela had methamphetamine in his system concluded that his cause of death was “complications of asphyxia during struggle with law enforcement while under the influence of methamphetamine.”  It was noted that Valenzuela had hemorrhaging around his neck muscles and a fracture of his hyoid bone which the doctor concluded, based in part on the video, was most likely caused by the neck restraint in the 7-Eleven parking lot.

The court, in denying the officers’ motion to dismiss the case on summary judgment grounds found that a jury could find constitutional violations with respect to due process rights because the officers’ actions were conscious shocking and that a jury could find the use of force to have been unreasonable.    The court also found that a jury could find that the responding sergeant, Sergeant Gonzalez, failed in his supervisory capacity and specifically by his failure to intercede.

In examining the use of force claim the court noted that the Anaheim policy allowed the carotid restraint “was proper only to control a subject who is ‘violent or physically resisting’…while…the air choke hold, by contrast, was proper only when use of deadly force was justified.”  The court then noted the dispute between the plaintiffs and the officers as to what type of restraint was being used on Valenzuela.

This case provides a great example of agency policy differences between the chokehold and the carotid hold.  In some sense it also demonstrates the difficulty an officer may have in deploying the carotid restraint on a resisting subject, if the testimony of the officer is adopted.   Problematic is the duration of the hold, even at 15-20 seconds since a successful hold should render a subject unconscious in 4-7 seconds.

In McCoy v. Meyers, 887 F. 3d 1034 (10th Cir. 2018), the United States Court of Appeals for the 10th Circuit, looked at a carotid restraint pre-handcuffing and a carotid restraint post-handcuffing.

On March 22, 2011, Hutchinson, Kansas Police responded to an armed hostage situation involving Deron McCoy, Jr. McCoy had checked into a room at the Budget Inn with his infant daughter and sister. McCoy would not let his daughter go with the child’s mother and police were called to the motel. Five Officers47  entered McCoy’s room and saw McCoy holding a gun and sitting on the bed with his sister and his daughter. McCoy was alternating between pointing the gun at sister and at the officers. After 30 to 45 seconds McCoy dropped the firearm in accordance with officer commands. McCoy’s sister and daughter were cleared from the room and Officer Burlie jumped on the bed to arrest McCoy. Officer Burlie perceived McCoy to be grabbing at his service weapon and yelled, “He’s grabbing my gun.”

After McCoy was on the ground face-down with his hands behind his back, Officer Pickering immediately put McCoy in a carotid restraint. Officer Pickering maintained the carotid restraint for five to ten seconds and caused McCoy to lose consciousness. While McCoy was unconscious, the officers handcuffed him and zip-tied his feet together. After McCoy regained consciousness, officers struck him again more than ten times on his head, shoulders, back, and arms. Officer Meyers then put McCoy in another carotid restraint for ten seconds which caused McCoy to lose consciousness again. McCoy was then removed from the motel room and put in a police car.

The Court determined that the officers’ conduct before McCoy was restrained did not violate clearly established law. The Court stated that no reasonable jury could conclude that McCoy was controlled before he was restrained with the handcuffs and zip-ties. Additionally, the Court explained that prior case law would not have put reasonable officers on notice that using force on a dangerous individual who was not yet subdued was unconstitutional.

However, the Court then determined that a reasonable jury could find that the post-restraint force violated McCoy’s Fourth Amendment rights. The Court then analyzed the Graham factors to determine whether the post-restraint use of force against McCoy was unreasonable. With respect to the first Graham factor, which is severity of suspected offense, The Court acknowledged that McCoy’s offense was severe because he had a gun and two hostages. The Court then looked to the second Graham factor, which is immediate threat posed. Here, the Court highlighted that the post-restraint force and carotid hold occurred after McCoy was handcuffed and zip-tied. Therefore, a jury could find that McCoy did not pose an immediate threat to officers after he had been restrained. With respect to the third Graham factor—active resistance or attempts to flee—the Court explained that McCoy’s resistance had ended by the time the officers struck him and put him in the second carotid restraint. McCoy’s lack of resistance after he had been handcuffed and zip-tied weighed in favor of finding the post restraint use of force unreasonable.

Turning to whether the post-restraint use of force was clearly established as unconstitutional, the Court stated that prior case law “made it clear that the use of force on effectively subdued individuals violates the Fourth Amendment.” The Court then further emphasized, “In light of those cases, it should have been obvious to the [officers] that continuing to use force on Mr. McCoy after he was rendered unconscious, handcuffed, and zip-tied was excessive.”

In sum, the officers were entitled to qualified immunity on McCoy’s claims against them for the pre-restraint force, but the officers were not entitled to qualified immunity on McCoy’s claims for the post-restraint use of force.

A case from the United States Court of Appeals for the 6th Circuit, Griffith v. Coburn, 473 F.3d 650 (6th Cir. 2007) provides an example of how a court may view even a vascular neck restraint as a force option.

Arthur Partee’s mother, Ethel, went to the Benton Township Police Department because her son had been acting strange and she wanted advice about having him hospitalized. Officer Sutherland informed the mother that Partee could not be hospitalized because he was not a danger to himself or others, but Officer Sutherland also discovered that Partee had an outstanding traffic warrant. Officer Sutherland then offered to arrest Partee for the warrant so that Partee could be evaluated. Partee’s mother agreed, and Officers Sutherland and Bradshaw went to the home to arrest Partee.

As the Officers arrived at the home, Partee was sitting on the couch and watching television. The parties disputed what happened in the ensuing moments. According to Ethel Partee, “Officer Sutherland “all of a sudden” jumped on her son, put his arm around Arthur’s neck, and began choking and wrestling him while Officer Bradshaw stood by watching.” According to Ethel’s version of the facts, the struggle continued for a period of minutes before her son went limp, and Officer Sutherland then threw Arthur face down on the floor and both officers handcuffed him.

According to Officer Sutherland’s version of the facts, Partee rushed toward him when he took his handcuffs out. Officer Sutherland explained that a struggle then took place for several minutes before Partee was handcuffed. Officer Sutherland stated that at one point during the struggle, Partee unsnapped one of the snaps on Officer Sutherland’s firearm holster. In fear that Partee would get his firearm, “Officer Sutherland said that he used a vascular neck restraint on Partee to cut off the flow of oxygenated blood to his brain.” Officer Bradshaw also stated that he saw Officer Sutherland used the neck restraint on Partee for a period of seconds and this caused Partee to go limp. Partee was ultimately pronounced dead on arrival at the hospital.

In its discussion of the case, The Court explained that the question of whether Partee’s constitutional rights were violated was completely determined by which version of the facts were accepted. Specifically, the Court stated, “If Ethel Partee’s account of the encounter is credited, i.e., that Officer Sutherland almost immediately and without provocation jumped on Arthur Partee and began choking him, then the force used against Partee is objectively unreasonable.” Moreover, the Court noted that Officer Sutherland had been trained on the use of the vascular neck restraint and knew that this tactic was on the more violent part of the use of force continuum. Additionally, the Court stated that it was factually undisputed that Partee never actually had possession of Officer Sutherland’s gun. For these reasons, the Court concluded that a jury could find that Officer Sutherland’s use of the neck restraint was unreasonable.

The Court also considered whether Partee’s constitutional right was clearly established at the time of the incident. In this regard, the Court explained the following: “[w]hen the facts in this case are viewed in the light most favorable to the plaintiff, it is clear that Partee posed no threat to the officers or anyone else. It follows that the use of the neck restraint in such circumstances violates a clearly established constitutional right to be free from gratuitous  violence during arrest and is obviously inconsistent with a general prohibition on excessive force.”

For these reasons, the Court concluded that there were issues of material fact concerning the reasonableness of Officer Sutherland’s neck restraint on Arthur Partee. Thus, the Court allowed the case to proceed against Officer Sutherland.

In Newport v. City of Sparks, 2016 U.S. Dist. LEXIS 41271 (D. Nev. Mar. 28, 2016), a federal district court in Nevada considered whether a chokehold on a subject who was in a stolen vehicle and believed to be armed and dangerous, was an unreasonable use of force.

On November 28, 2010 Sparks PD located a stolen vehicle in the parking lot of a casino. The suspect, Joshua Newport, was believed to be armed and dangerous. While officers were establishing a perimeter, Newport attempted to drive the vehicle out of the garage and the officers used a PIT maneuver to stop the vehicle. Officer Marconato approached the vehicle with his gun drawn and Newport attempted to flee. Officer Marconato then ordered Newport to stop and Newport did. Officer Rowe then tackled Newport and the two struggled on the ground. Officer Rowe then placed Newport in either a headlock or a chokehold and Newport briefly lost consciousness due to being choked. Other officers arrived, Newport was tased twice, and was eventually put in handcuffs. Subsequently, Newport filed a lawsuit against the officers.

The Court held that a reasonable jury could find that Officer Rowe’s use of the choke hold amounted to excessive force in violation of the Fourth Amendment. The Court explained that Newport had presented evidence that Rowe choked him and that whether Rowe choked him intentionally or unintentionally were material questions of fact for a jury to resolve. The Court further explained that if a jury found that Rowe had intentionally choked Newport, it could further find that the use of force was unreasonable under the circumstances of the case. The Court also stated that the law was clearly established such that a reasonable officer would have known that employing a chokehold on a suspect, without a reasonable belief that the suspect posed a serious threat, was an unreasonable use of force in violation of the Fourth Amendment. Thus, the Court did not dismiss Newport’s claim against Officer Rowe for his alleged unreasonable use of the chokehold.

In Callaway v. Travis County, 2016 U.S. Dist. LEXIS 186372 (W.D. Tex. Jul. 28, 2016), a federal district court considered an allegation from a jail where the plaintiff claimed that an officer used a chokehold on her while she was secured in a restraint chair.  More importantly the case also looked at the duty to intervene, which it referred to as “bystander liability” with respect to other officers who were present when the alleged chokehold took place.

Plaintiff Caroline Callaway was stopped by the Austin Police on February 4, 2013 after she left a bar. Callaway underwent a field sobriety test, during which she exhibited signs of intoxication, but she refused to take a breathalyzer test. Callaway was arrested and taken to the Travis County Jail while a search warrant was obtained to test her blood. Callaway claimed she was eventually brought to a padded room with a restraint chair. Callaway asserted that officers also put her in a spit mask which left her unable to see or breathe properly. Callaway then stated that she had a panic attack and she began to involuntarily shake in the restraint chair. Callaway claimed that as the phlebotomist was attempting to take blood, one of the Travis County officers choked Callaway to the point of her being on the verge of losing consciousness and her body going limp.

Among a number of claims, Callaway brought bystander liability claims against Austin Police Officer Oborski and Sergeant Johnson for failing to prevent County officers from using a chokehold during the blood draw. The Court stated that bystander liability attaches, “when an officer (1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Moreover, “[b]ystander liability arises only when the plaintiff can prove another officer’s use of excessive force.”

Therefore, the Court proceeded to examine whether Callaway had shown that County Officers used excessive force. Here, the Court found that that there were fact issues regarding whether a chokehold occurred and whether the use of the chokehold constituted excessive force. Callaway had provided testimony in her deposition that officers choked her in order to obtain the blood sample, and also proffered expert testimony that her injuries suggested a chokehold. The Court then stated that there was also issues of fact regarding whether Officer Oborski and Sergeant Johnson—who were both present during the blood draw—observed the chokehold and had a reasonable opportunity to stop it. Lastly, the Court stated that the law was clearly established at the time of the incident that an individual has a right to be free from excessive force during an arrest, and that “a reasonable officer would have known that applying a chokehold to a restrained individual who was involuntarily shaking and whose eyes, nose and mouth were covered was clearly excessive and objectively unreasonable force.” Therefore, Callaway’s bystander claims against Officer Oborski and Sergeant Johnson for the chokehold were not dismissed.

In Lewis v. City of Chicago, 2005 U.S. Dist. LEXIS 7617 (N.D. Ill. Apr. 11, 2005), a federal district court reviewed the actions of officers in failing to intervene when another officers is using a chokehold.

On May 26, 2004, Officers Soto and Arnolts were working in plain clothes and were assigned to a Chicago Transit Authority (CTA) train. The Officers saw Christopher Hicks violate a CTA ordinance by walking between cars while the train was moving. Officer Soto approached Hicks and Hicks ran from the train. The officers searched for Hicks and found him approaching a bus stop, Officer Arnolts then told Hicks, “Chicago Police, stop.”

Under Plaintiff’s version of the facts, Officers Arnolts and Soto then “jumped” Hicks as he was standing against a wall. The Officers repeatedly punched Hicks until he fell to the ground and rolled onto his stomach. Both officers kicked Hicks, and one of the Officers straddled Hicks and began to choke him. Two uniformed officers, Pena and De Van, then arrived on scene, and Plaintiff presented evidence that Officer Soto had Hicks in choke hold when the uniformed officers arrived. Officer Arnolts was laying across Hicks’ legs. Officer Pena then performed a three-point kneeling stance to successfully handcuff Hicks. Hicks was unresponsive immediately after the handcuffing. According to Plaintiff, Officers Pena and De Van did not intervene to stop Officer Soto from choking Hicks.

Plaintiff argued that Officers Pena and De Van should have intervened to stop Officer Soto from choking Hicks. In discussing an officer’s duty to intervene, the Court stated that, “[a] police officer who is present and fails to intervene to prevent other police officers from using excessive force can be liable under § 1983 if that officer has reason to know excessive force is being used and a realistic opportunity to intervene to prevent the harm from occurring.” Turning to the facts of the case, the Court pointed out that Hicks was still alive when Officers Pena and De Van arrived on scene. Moreover, there was evidence that Officers Pena and De Van witnessed Officer Soto use the choke hold on Hicks for at least a couple of minutes. Other witnesses also stated that Officer De Soto had Hicks in a choke hold and not a head lock.  Accordingly, this evidence created a genuine issue of material fact regarding whether Officers Pena and De Van saw Officer De Soto using the choke hold and whether the officers had a reasonable opportunity to intervene to stop the choke hold.

In Copen v. Noble County, 2016 U.S. Dist. LEXIS 20301 (S. Dist. Ohio 2016), a federal court considered an allegation by a plaintiff that he had been subjected to a lateral vascular neck restraint and that there was a failure to train officers on this tactic.  It should be noted that the case involved Noble County Sheriff’s Office personnel as well as officers of the Caldwell Police Department.

The case involved a domestic argument between Copen and the woman he lived with that led Copen to start packing his belongings to leave the residence.  The belongings included a Harley Davidson and a collection of firearms.   Ms. Carna, the other half of this dispute went to the Sheriff’s Office and asked if someone could speak with Copen.  When the officers spoke with Copen he agreed to leave and come back and collect the rest of his belongings later.

Copen did not leave the area and at some point, he returned to the house and locked himself in the den with two small dogs.  This prompted another response by members of the Sheriff’s Office including Deputy Stokes. The officers coaxed Copen outside where he reportedly became agitated and cussing while refusing to leave.   The officers called the Sheriff for advice at which point the Sheriff said Copen either had to leave or be arrested.  Copen acknowledged that with a dog in each arm, he began walking toward his vehicle that also contained the firearms.  Copen said he was grabbed by officers and he told the officers they were hurting his dogs. Copen indicated that he dropped the dogs and was then put in a lateral vascular neck restraint by Deputy Stokes.  According to Stokes, Copen began fighting with the officers at which point he lunged at one of them, and from mostly his own momentum, Copen went to the ground where Copen put a forearm on the back of Copen’s neck.

The court noted that the Noble County Sheriff’s Office covered lateral vascular neck restraints in their policy manual as follows:

A “lateral vascular neck restraint” is defined as: A method or manner of restraining or controlling a person by physically restraining the person’s neck from behind. The technique involves the initial restraint of a person through contact and control methods which may ultimately be used to incapacitate the person by rendering the person temporarily unconscious where the person refuses to submit to lesser levels of control. Plaintiff’s Response, (citing Noble County Sheriff Law Enforcement Policies and Procedures). Use of force falls along a continuum of five levels, and officers are directed to “use only the level of force that is reasonably necessary to stop the perceived threat.” The use of a lateral vascular neck restraint falls at the third level of the continuum: Level 3—(Actively Resistant) The suspect is perceived by the officer to be actively resistant. The appropriate response is compliance techniques. This is the threshold for any reasonable officer to consider this suspect to be a potential threat to himself, the officer, or other citizens. Compliance techniques may include all reasonable means to cause the suspect to comply as soon as reasonably possible. These techniques may include use of chemical weapons, use of restraints, forced movement, forcing a suspect’s limbs behind his back, forcing a suspect down on the floor or against a wall, Lateral Vascular Neck Restraint (LVNR) [if the officer [*22] is trained and has demonstrated  proficiency in its use] or using other forms of rough physical force, etc. Once suspects are perceived as actively resistant, officers should not relax care until the subject is fully secured. Lesser levels of force are to be used when the suspect is perceived by the officer to be compliant (Level 1) or passively resistant (Level 2).

The court then noted that Deputy Stokes testified that he had not received training on the Sheriff’s Office’s use of force policies.  Stokes indicated that he had received the policies on a flash drive but had never read them all.  Stokes said he did not know what the lateral vascular neck restraint was and that he had no use of force training, beyond what he had at the basic academy.

With respect to Deputy Stokes the court concluded: “Viewing the facts in the light most favorable to the plaintiff, it appears that defendant Stokes, who testified that he had not undergone specific training on Noble County’s use of force policies,  placed plaintiff in the lateral vascular neck restraint after the plaintiff was on the ground and was no longer a threat to the officers by virtue of his potential access to loaded firearms.

The court found that the basic training the officers received was sufficient to overcome the failure to train claim put forth by the plaintiff.

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