Even supporters of the police were shocked by the video of Officer Derek Chauvin pressing his knee on George Floyd’s neck as the restrained man struggled to breathe.

Chauvin used one form of chokehold, and Floyd wasn’t the first person to be victimized by such a procedure. Despite the risk inherent in this method of restraint, police regularly employ chokeholds. There have been attempts to rein in the or even ban the tactic through the legal system, but they have been stymied by a Supreme Court opinion imposed nationally via the incorporation doctrine.

In 1976, Los Angeles police officers pulled over Adolph Lyons for a broken tail light. Officers ordered him out of the car and held him at gunpoint. When Lyons complained that a key ring in his hand was causing pain, an officer put him in a chokehold. According to Vox, Lyons “woke up facedown on the ground, covered in his own urine and feces.” He was ultimately released with a citation for the tail light.

According to Vox, LAPD officers used chokeholds on at least 975 occasions between 1975 and 1980. At least 16 people died from the procedure.

Lyons sued in federal court attempting to get an injunction to stop LAPD from employing chokeholds “except in situations where the proposed victim of said control reasonably appears to be threatening the immediate use of deadly force.” City of Los Angeles v. Lyons went all the way to the Supreme Court where the justices made it virtually impossible to ban cops from using chokeholds through the courts.

In the 5-4 decision, the Court held that Lyons didn’t have standing to obtain an injunction against LAPD unless he could prove he was likely to be choked by officers in the future – an impossible feat.

Justice Byron White wrote the majority opinion. He said that “past exposure to illegal conduct” doesn’t establish standing for an injunction. Instead, “Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.”

White established that in order to obtain an injunction, Lyons “would have had not only to allege that he would have another encounter with the police, but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner.”

In effect, the Court established a legal hurdle impossible to clear. Justice Thurgood Marshall made this point in his dissent, writing that under this standard, “If the police adopt a policy of ‘shoot to kill,’ or a policy of shooting 1 out of 10 suspects, the federal courts will be powerless to enjoin its continuation.”

While Lyons only involved LAPD, the incorporation doctrine nationalizes every case. Through this Supreme Court doctrine that applies the federal Bill of Rights to state and local governments, this SCOTUS opinion gives every police officers using a chokehold legal protection in every city, county and state in the U.S. from Honolulu, Hawaii to West Quoddy Head, Maine.

Lyons did not close the door on suing police officers who harm somebody using a chokehold, but even then, they face the qualified immunity hurdle.

The incorporation doctrine is supposed to protect civil liberties by providing a mechanism for the federal courts to police state and local government actors to keep them from violating people’s rights. But it rarely works that way. More often than not, federal courts expand government power and then impose those looser standards across the entire United States.

A decentralized system where cases were heard under state law and state constitutions would undoubtedly have problems. Some states would probably extend almost complete protection to law enforcement officers just like the federalized system. But surely some would be better.

The lesson here is pretty clear. Government protects its own. Centralized power almost never benefits the average person in the long run. And we cannot count on federal courts to protect our rights.

The only way to stop police officers from using chokeholds is to ban or limit them at the state or local level. This effectively nullifies the legal protection extended by the federal courts.

Mike Maharrey

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