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'I Can't Breathe' 

Following a governor's order, some local departments look to ban neck holds

click to enlarge Protesters record law enforcement and demonstrators chanting, "No justice, no peace, no racist police" on June 1.

Photo by Mark McKenna

Protesters record law enforcement and demonstrators chanting, "No justice, no peace, no racist police" on June 1.

In the weeks following George Floyd's killing by a Minneapolis police officer, as protesters have taken to the streets in droves to decry institutionalized racism and police violence, Floyd's last words — "I can't breathe" — have become a rallying cry.

Floyd uttered the phrase at least 15 times during his deadly encounter with Minneapolis police officer Derek Chauvin, who forcefully pressed his knee into the back of Floyd's neck for nearly nine minutes as Floyd lay handcuffed prone on the ground, including for two minutes after Floyd had stopped moving and become nonresponsive. (Chauvin has since been charged with second degree murder in the case.)

That the phrase has a tragic familiarity to it — it was repeated 11 times by another unarmed black man, Eric Garner, as a police officer held him in a fatal choke hold in New York City on July 17, 2014 — probably adds to the power of its widespread use in chants, on signs and even clothing. And as the tone of protests continues to shift from expression of righteous anger to demands for action, "I can't breathe" remains a focal point.

Last week, California Gov. Gavin Newsom signed an executive order implementing the first tangible changes in the state stemming from Floyd's death, directing California's police training agency to stop teaching the carotid artery neck hold to officers.

"We train techniques on strangleholds that put people's lives at risk," Newsom said at a press conference announcing the order. "At the end of the day, the carotid hold that is literally designed to stop people's blood from flowing into their brain, that has no place any longer in 21st century practices and policing."

The rub is that the hold still does have a place in many police agencies that allow its use and Newsom has little power to change that, as it's beyond the governor's reach to dictate the policies of the states' myriad of local police agencies. But the order promises to have long-term and immediate impacts, while also shining a spotlight on a next area of focus for those seeking reform — police policies and procedures.

Commonly confused with a choke hold, a carotid artery hold sees an officer place his elbow under a suspect's chin, creating a pocket that protects their trachea, while using the bicep and forearm to contract on the sides of the suspect's neck. When done correctly, the hold is designed to contract the suspect's carotid arteries, limiting blood flow to the brain and causing them to pass out, while leaving their airway undisturbed. But this is easier said than done, especially with a noncompliant or even combative suspect.

Until the day of Newsom's order, all local agencies' policies allowed use of the hold as an acceptable use of force under certain situations.

The Humboldt County Sheriff's Office and all local police departments use template policies from Leixpol — which dubs itself as "America's leading provider of public safety policy and training solutions" — which they can then tweak and customize as they see fit.

When it comes to the use of force, the policy is somewhat ambiguous, noting "there is no way to specify the exact amount or type of reasonable force to be applied in any situation," but instructs officers to use only the minimal amount of force necessary given "the facts and circumstances" they perceive. The policy also includes a "duty to intercede" clause that mandates that any officer present intervene if they see another officer use "force that exceeds" that permitted by law and policy.

But while local departments use the same basic template, there is some variation from department to department. For example, the template use of force policy warns officers that "shots fired at or from a moving vehicle are rarely effective" and urges officers instead to move out of the way of a vehicle that is headed toward them. In Eureka, former Police Chief Andrew Mills changed that portion of EPD's policy to prohibit the practice — making it more restrictive than that of its neighboring agencies — but according to an updated version of EPD's current policy under Chief Steve Watson, shooting at moving vehicles is once again permitted.

When it comes to the carotid hold, all local agencies had the boilerplate language from Lexipol in their policies until Newsom's order last week. This language allowed the hold — saying it "may be effective in restraining a violent or combative individual" — but required that officers be trained in its use and warned it "should generally be avoided" on pregnant women, "elderly individuals" and "obvious juveniles." Anyone the hold is used on and rendered unconscious by it should be promptly evaluated by medical professionals, according to the policy.

But within hours of a press conferencing announcing Newsom's executive order, Arcata Police Chief Brian Ahearn sent out an email to all department employees announcing a change in policy.

"Effective immediately, the Arcata Police Department no longer authorizes the use of the carotid control hold," he wrote, adding that any lesson plan presented to the department's personal that included instruction on the hold "is no longer valid" and can't be used until that instruction is removed. "Thank you all for continuing to police Arcata as professionals."

Watson, meanwhile, tells the Journal that he changed EPD's policy, effective June 6, to prohibit use of the hold except under life and death circumstances. Under the change, the hold is to be considered "deadly force," which only allows officers to use it when "necessary" to protect themselves or someone else from "imminent threat of death or serious bodily injury."

Responding to an inquiry from the Journal, Fortuna Interim Police Chief Mike Downey, the former county sheriff who stepped into the role late last year, said he was unaware the department's policy allowed use of the hold.

"In my long career, I have not utilized the technique but was trained on its usage in the academy 35 years ago," he wrote in an email to the Journal. "I believe it is a technique that should never be used based upon the other more practical tools we have at our disposal."

Downey said he would move to have the hold removed from FPD's policy, adding that he does "not condone its usage and I am not aware of any law enforcement agency in the area or state that do."

The Humboldt County Sheriff's Office, which Downey helmed until 2017, still includes use of the hold as permissible under its policy, which follows Lexipol's standard language. Current Sheriff William Honsal was not immediately available to comment for this story.

While Newsom lacks the power to ban use of the carotid hold in the state, his order will have reverberating impacts. In the short term, it will cause some departments — like Arcata, Eureka and Fortuna — to rethink their policies while sparking local conversations about police policies, which are ultimately the standard to which officers can be held accountable. Longer term, the order could result in departments' phasing out use of the hold as it creates a huge liability for departments as officers will no longer be trained in its use. Assemblymember Mike Gipson (D-Compton) has also already introduced a bill that would make the hold illegal statewide.

Moving forward, as the national conversation focuses on everything from defunding police to increased pay and accountability, it seems likely local policies and procedures will come under increased scrutiny as communities work to understand — and possibly change — the standards set for their officers. And in California, residents now should have access to department's policies and procedures after Senate Bill 978 passed in 2018. The bill requires that, beginning this year, local departments post them on their websites.

"Posting policies and procedures online ensures that law enforcement agencies are more transparent about what they're doing," the nonprofit Electronic Freedom Foundation wrote at the time. "Doing so also helps educate the public about what to expect and how to behave during police encounters."

Thadeus Greenson is the Journal's news editor and prefers he/him. Reach him at 442-1400, extension 321, or thad@northcoastjournal.com. Follow him on Twitter @thadeusgreenson.

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Thadeus Greenson

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Thadeus Greenson is the news editor of the North Coast Journal.

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