#Staten Island DA vows not to prosecute cops who kneel on backs of suspects

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Staten Island District Attorney Michael McMahon
Robert Mecea

The Staten Island DA vowed Friday not to prosecute cops if they violate the city’s controversial new “diaphragm law” — which makes it illegal for officers to sit or kneel on a person’s back during an arrest.

“The City’s new diaphragm law is not filling a gap of justice in our penal law and in fact it may be unconstitutional,” the borough’s district attorney, Michael McMahon, wrote in a statement.

“I have never taken the position that I would unilaterally refuse to prosecute certain crimes,” McMahon said. “I do not see it as my role as District Attorney to decide what is and is not a crime. That is the job of legislators.

“But it is equally important for me to say to our legislators, to our police officers, and to the public that I do not think this law is necessary.

“[T]he reckless way in which the City diaphragm bill was drafted goes well-beyond addressing [chokehold] issues and actually defies common sense in the restrictions it places on police officers who we expect and need to respond to dangerous and critical life and death situations.”

The DA takes issue with a portion of the bill that criminalized the police use of chokeholds as part of a package of law enforcement reforms signed into law on July 15 in the wake of the death of George Floyd.

The law also bans cops from using any technique that could restrict someone’s ability to breathe, such as sitting, kneeling or standing on someone’s chest or back.

McMahon’s statement comes a day after video emerged of NYPD Chief of Department Terence Monahan telling police brass during a CompStat meeting that Big Apple district attorneys had assured him they will not prosecute cops over the new law.

During what turned into a heated exchange between police brass, Deputy Chief Brian McGee and Assistant Chief Kathleen O’Reilly voiced concern for their officers making arrests under the new law.

“Chief, but we can’t put our people in harm’s way unnecessarily,” O’Reilly said before being cut off by Monahan.

“We’ve had every DA come out and say they are not going to charge that. We can’t be afraid to do what we do, we can’t walk away,” Monahan said, leaning on the Manhattan North supervisors — with arrests plummeting by more than 60 percent over the last month citywide.

The city’s highest-ranking uniformed officer has called that part of the legislation “dangerous.”

PBA president Patrick Lynch has ripped the new law — but admonished Monahan’s outburst, saying that pushing cops to continue as if the legislation doesn’t exist could lead to criminal charges against them.

He said Monahan’s comments were nothing more than “schoolyard bully tactics, playing on police officers’ pride and passion.

“[The district attorneys] have made no such unequivocal statements publicly, and those who have spoken to the press have declined to give the kind of absolute assurance Chief Monahan claims to have,” Lynch said in an email to union members and obtained by The Post just hours before McMahon made the announcement.

The Manhattan District Attorney’s Office pointed The Post toward DA Cy Vance’s comments earlier this month when he voiced concern that the law would fail when questioned in court.

“I think there may be legal challenges to it that would be successful, and make the City Council bill at risk, as a statute, because of pre-emption by the state, and certainly there is going to be challenges regarding the ambiguity,” Vance said at the time.

Meanwhile, the Legal Aid Society attacked McMahon as having “a clear bias problem.

“[W]hen it comes to holding police officers accountable for committing heinous acts of misconduct, the NYPD can count on DA McMahon for special treatment,” the group said in a statement.

The criminalization of the police technique has spurred some nearby law enforcement agencies to tell their cops not to make any arrests in New York City and led the New York State Police to abandon certain tactics while working in the city.