VERDICT
In the administrative law case
Mr. xxx
xxx Göttingen,
Plaintiff and Appellant,
Legal Representative: Attorney Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
The Göttingen Police Directorate,
Groner Landstraße 51, 37081 Göttingen,
defendant and respondent,
Subject of the dispute: Determination of the illegality of a police coercive measure
The Higher Administrative Court of Lower Saxony – 11th Senate – rendered the following judgment in the oral proceedings of October 28, 2016, with presiding judge xxx, judge xxx, judge xxx, lay judge xxx and lay judge xxx presiding:
The judgment of the Göttingen Administrative Court – 1st Chamber – of 1 October 2014 is amended.
It is determined that the use of direct force on January 17, 2013, in the form of a painful nerve pressure technique above the plaintiff's nose by an official of the defendant was unlawful.
The defendant shall bear the costs of the proceedings.
The judgment is provisionally enforceable with respect to costs. The defendant may avert enforcement by providing security in the amount of the enforceable sum, unless the plaintiff provides security in the same amount beforehand.
The appeal is not admitted.
FACTS OF
The plaintiff seeks a declaration that a measure of direct coercion was unlawful.
On January 16, 2013, a demonstration on the topic of "Good Education and Housing for All" took place in Göttingen. Following the demonstration, a vacant former student dormitory belonging to the University of Göttingen, located at Geiststraße 10 in Göttingen, was occupied. The plaintiff was also involved in this occupation. On the morning of January 17, 2013, representatives of the University of Göttingen appeared on site and repeatedly, but unsuccessfully, demanded that the occupiers vacate the building. The final demand was issued at 10:00 a.m. on January 17, 2013, ordering immediate enforcement with a deadline of 11:30 a.m. Subsequently, the university filed a criminal complaint.
When the police arrived on January 17, 2013, eleven people, including the plaintiff, were still inside the building, sitting on the floor in a room on the first floor. The police twice ordered them to leave the building, the last time threatening the use of force, but to no avail. They were then carried out by police officers. The plaintiff was the first person taken out of the building by Police Commissioner xxx and Police Commissioner xxx. The officers had previously asked him to come with them voluntarily; otherwise, he would face coercive measures. Since the plaintiff did not comply with this request, the two officers carried him to the stairs leading to the ground floor. Due to the high risk of slipping, the plaintiff agreed to descend the stairs on his own. On the ground floor, the plaintiff dropped to the ground again at the landing. The officers then attempted to help him up and carry him away. When they were initially unsuccessful, xxx applied a nerve pressure technique to the plaintiff. He pressed his open left hand against the back of the plaintiff's head and placed his open right hand on the plaintiff's nose in an attempt to force him to stand up on his own. As a result, the plaintiff suffered pain, minor abrasions between his nose and upper lip on the left side of his face, and a slight nosebleed. After this pressure technique, as well as an attempt to handcuff the plaintiff, proved unsuccessful, the police officers finally managed to carry the plaintiff to the rear exit of the building. The parties dispute whether and to what extent the plaintiff resisted on the ground floor landing, particularly before and during the application of the nerve pressure technique, and to what extent the ground floor was slippery due to the winter weather conditions.
The plaintiff filed a lawsuit on July 11, 2013, seeking a declaratory judgment that the use of nerve pressure techniques was unlawful. In support of his claim, he argued essentially that the application of these painful nerve pressure techniques was disproportionate. He maintained that the police officers could have carried him the remaining ten meters to the building's exit without using these techniques, and ultimately did carry him. The defendant's argument that his posture, particularly crossing his arms in front of his torso, had prevented him from being carried away was unconvincing.
The plaintiff has requested
a ruling that the application of direct coercion in the form of a painful nerve pressure technique via his nose by an official of the defendant on January 17, 2013, was unlawful.
The defendant has requested that
the action be dismissed.
and pointed out that the nerve pressure technique constituted the application of direct force and that this coercive measure had been applied without any abuse of discretion. It was irrelevant that the police officers had alternately used different coercive measures, such as carrying the person away and the nerve pressure technique. Coercive measures could be repeated and changed until the administrative act to be enforced had been carried out. While carrying the person away was generally a less forceful measure than the application of the nerve pressure technique, it had to be taken into account that there was a high risk of slipping in the occupied building, particularly on the ground floor, due to the winter weather conditions. Since the plaintiff had not provided any points on his body to be carried away, carrying him away involved significantly higher risks for all involved.
Both the plaintiff and the two police officers filed reciprocal criminal charges. The Göttingen Public Prosecutor's Office has provisionally discontinued both criminal proceedings (32 Js 5063/13 and 32 Js 8042/13) pending the present court proceedings, pursuant to Section 154d of the German Code of Criminal Procedure.
In its judgment of October 1, 2014, the Administrative Court dismissed the action, stating essentially that it had not been proven that the coercive measure in question was disproportionate and therefore unlawful. The court held that the pressure technique used by the police officers on the plaintiff constituted the application of direct force pursuant to Section 69, paragraphs 1 and 2 of the Lower Saxony Public Safety and Order Act (Nds. SOG). The formal requirements for this coercive measure were met. The use of direct force had been verbally threatened to the squatters. Furthermore, the threat of coercion was unnecessary due to the existence of an imminent danger. Based on the statements of the two police officers, the use of the pressure technique would have been proportionate because carrying the plaintiff away, as a less severe form of direct force, would not have been possible or suitable to enforce the plaintiff's obligation to leave the building. According to the two police officers, the conditions on the ground floor and the upper floor differed significantly. On the ground floor, the risk of injury to the plaintiff during removal would have been significantly higher due to the slippery floor and his physical resistance. The police officers therefore decided to first attempt to get the plaintiff to stand and walk independently by using arm clamps, applying pressure to the nose, and handcuffs. In this specific situation, Officer xxx considered pressure to be the less intrusive means of coercion than carrying him away. The plaintiff's differing account does not alter this conclusion. According to him, he behaved completely peacefully. He gave no cause for the police officers to try to get him to stand, including by using pressure to the nose. The court was not sufficiently convinced that the plaintiff's account was correct and that of the police officers was incorrect. The police officers summoned as witnesses in the oral proceedings permissibly invoked their right to refuse to testify pursuant to Sections 98 of the Administrative Court Procedure Act (VwGO) and 384 No. 2 of the Code of Civil Procedure (ZPO), citing the criminal proceedings initiated against them by the Göttingen Public Prosecutor's Office for assault in office. Therefore, it was not possible to confront the police officers with the plaintiff's differing account and to obtain any further information. The court cannot determine which of the two contradictory accounts of the events is true. Therefore, the lawsuit is dismissed by the plaintiff. He bears the burden of proof for the facts he alleges and has failed to provide the necessary evidence.
In support of his appeal, which was granted by the Senate, the plaintiff essentially argues the following: Regardless of the questions of whether there is a material contradiction between his account and that of the two police officers, and who bears the burden of proof, it is established that Officer xxx did not use the nerve pressure technique to break his resistance, but rather to compel him to stand up. The application of the nerve pressure technique, which is associated with pain, does not constitute direct coercion under Section 69, paragraphs 1 and 2 of the Lower Saxony Public Safety and Order Act (Nds. SOG), if – as in his case – an action, namely walking independently to the exit of the building, and not an omission, is to be enforced. The sole purpose of this technique is to inflict pain in order to compel the affected person to perform a specific action after the pain has subsided by threatening further pain. The nerve pressure technique with the express purpose of inflicting pain is not explicitly mentioned in the list of permissible actions in Section 69, paragraph 3 of the Lower Saxony Public Safety and Order Act (Nds. SOG). Furthermore, it is more appropriate to classify this technique as a weapon within the meaning of Section 69 Paragraph 4 of the Lower Saxony Public Safety and Order Act (Nds. SOG) due to the necessary training of the police officers. The police officers had not specifically threatened him with the application of the nerve pressure technique, which is solely aimed at causing pain. However, the infliction of pain constitutes an independent and more serious enforcement measure than simply carrying someone away, which must be specifically threatened beforehand in accordance with Sections 70 Paragraph 1 and 74 Paragraph 1 Sentence 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG). A general threat of direct force does not automatically encompass every form of direct force. The unified enforcement order in the form of the order to evacuate the building does not, from the perspective of proportionality, render such an additional threat unnecessary. Moreover, the nerve pressure technique used to force him to stand up was disproportionate in the specific situation. It was not even suitable for immediately causing him to stand up and leave the building on his own. Since he was ultimately carried away by the police officers, it was not necessary. The alternative of carrying him away on the ground floor of the building was also not ruled out due to difficult external conditions.
The plaintiff requests that
the judgment of the Göttingen Administrative Court – 1st Chamber – of October 1, 2014 be amended and that it be determined that the application of direct coercion in the form of a painful nerve pressure technique via his nose by an official of the defendant on January 17, 2013 was unlawful.
The defendant requests that
the appeal be dismissed.
She defends the contested judgment. The plaintiff's argument that the facts supporting the proportionality considerations for the use of force are essentially established and undisputed is correct. Contrary to his account, the plaintiff actively resisted arrest. The threat of immediate force also includes the use of a nerve pressure hold. The plaintiff should have anticipated that grip techniques involving a certain degree of pain would be used, especially since his behavior made simple removal impossible and thus predictably provoked further measures. The applied pressure technique was proportionate. Its primary purpose was not to inflict pain, but to enforce an order. For further details of the parties' submissions and the facts of the case, reference is made to the court file, the defendant's administrative records, and the criminal investigation files of the Göttingen Public Prosecutor's Office – 32 Js 5063/13 and 32 Js 8042/13 – which were the subject of the oral proceedings.
REASONS FOR THE DECISION
The plaintiff's appeal is successful.
The use of direct coercion in the form of a painful nerve pressure technique above the plaintiff's nose by an official of the defendant on January 17, 2013, was unlawful. The Administrative Court therefore wrongly dismissed the plaintiff's declaratory action, which it correctly deemed admissible, as unfounded.
Contrary to the plaintiff's view, the nerve pressure technique in question constitutes a measure of direct coercion within the meaning of Sections 65 Paragraph 1 No. 3, 69 of the Lower Saxony Public Safety and Order Act (see 1.). However, the prerequisites for the application of direct coercion were not fully met (see 2.).
1. Nerve pressure techniques constitute a measure of direct coercion. According to Section 69 Paragraph 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG), direct coercion as a means of coercion within the meaning of Section 65 Paragraph 1 No. 3 Nds. SOG is the use of physical force, including physical aids and weapons, against persons. Physical force, according to the legal definition in Section 69 Paragraph 2 Nds. SOG, is any direct physical action against persons. This action—unlike the use of physical aids and weapons, where the action is merely "mediated"—is carried out through the direct application of physical force by police officers, including the use of police holds (Rachor, in: Lisken/Denninger, Handbook of Police Law, 5th ed. 2012, Section E, para. 831).
This applies not only when an omission is to be enforced, but also when the person obligated is required to take an active step, such as independently getting up and leaving the occupied building. This follows directly from the nature of administrative coercion as defined in Section 64 Paragraph 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG), which serves the compulsory enforcement of an administrative act directed at performing an action, tolerating an action, or refraining from an action. Contrary to the plaintiff's assertion, the fact that nerve pressure techniques are not explicitly mentioned in the lists of Section 69 Paragraphs 3 and 4 of the Nds. SOG is irrelevant. Section 69 Paragraph 3 of the Nds. SOG lists certain aids of physical force. Nerve pressure techniques are not among them, and the list, due to the use of the word "in particular," is merely exemplary and not exhaustive. In contrast, the list of weapons in Section 69 Paragraph 4 of the Nds. SOG is indeed exhaustive. The application of nerve pressure techniques does not constitute the use of a weapon. Nerve pressure techniques involve applying pressure to sensitive areas of the body to induce a sensation of pain. This means that the direct physical force of the police officers acting on the victim's body is used.
The fact that nerve pressure techniques involve the infliction of pain does not preclude their classification as physical force within the meaning of Section 69 Paragraph 2 of the Lower Saxony Public Safety and Order Act (Nds. SOG). Contrary to the plaintiff's assertion, the infliction of pain is not the "purpose" of nerve pressure techniques, and certainly not their "sole" purpose. Rather, it is a "means to an end," as is the case in the plaintiff's cited examples of laying on hands, forcing someone to leave, carrying them away, and using a police hold. As with these examples, the primary objective in the application of nerve pressure techniques is the desired outcome—in this case, the individual's independent standing up and leaving the occupied building.
2. The conditions for the application of direct force were not fully met.
The Administrative Court correctly held that an enforceable administrative act pursuant to Section 64 Paragraph 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG) existed in the form of the immediately enforceable oral demand by the University of Göttingen to vacate the occupied building within a precisely defined period. The plaintiff does not contest this finding in his appeal. Therefore, the Senate adopts the corresponding considerations of the Administrative Court.
In the present case, the use of nerve pressure techniques should have been specifically threatened by Police Officer xxx in the concrete operational situation with respect to the plaintiff. According to Section 74 Paragraph 1 Sentence 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG), the use of direct force must be threatened before its application. Pursuant to Section 70 Paragraph 3 Sentence 1 of the Nds. SOG, the threat must refer to specific coercive measures. This regulation in enforcement law reflects the general requirement of sufficient specificity in administrative acts, as codified in Section 37 Paragraph 1 of the Administrative Procedure Act (VwVfG). The requirement of specificity is intended to ensure the predictability of police action. When direct force is used, the affected person should be clear about the expected infringements on their physical integrity. In principle, it is sufficient if the use of direct force is threatened with sufficient clarity. It is generally not necessary to threaten the use of a specific form of direct force before every single physical intervention on the person. This applies particularly if it is a single enforcement measure without a break in time. Prior to the application of direct force, it is not always possible to foresee which specific measures will be necessary. However, if physical force is to be used pursuant to Section 69 Paragraph 3 of the Lower Saxony Public Safety and Order Act (Nds. SOG) or weapons pursuant to Section 69 Paragraph 4 of the Nds. SOG, these must be specified when the use of direct force is threatened (Rachor, in: Lisken/Denninger, loc. cit., Section E, paragraphs 867 and 868).
An exception to the aforementioned principle that, in cases involving the use of physical force against persons pursuant to Section 69, Paragraphs 1 and 2 of the Lower Saxony Public Safety and Order Act (Nds. SOG), the announcement that direct force will be used is sufficient, is warranted when the person concerned – as in this case – is to be compelled to perform an action through the application of a nerve pressure technique. The aforementioned grip technique constitutes a significant infringement on the person's physical integrity. The pressure applied to nerve points inflicts direct and considerable pain. The person concerned cannot necessarily expect such painful treatment. The principle of predictability in police action therefore requires that the deliberate and intentional infliction of not merely insignificant pain through the application of a nerve pressure technique within the context of direct force be specifically threatened. Only through such a prior threat is the person concerned enabled to prevent the infliction of pain by performing the required action. This also serves to better illustrate the coercive function of the means of coercion.
According to these principles, the police officers' actions on the upper floor of the occupied building towards the squatters located there, and thus also towards the plaintiff, did meet the requirements for prior warning of the use of force. At the beginning of the eviction, the police asked both the group of squatters as a whole and the plaintiff personally to leave the building voluntarily, verbally threatening the use of immediate force in each case. However, this general threat should have been supplemented by Officer xxx on the ground floor of the building with an announcement to the plaintiff that he would now use a nerve pressure technique, which could be painful, if the plaintiff did not voluntarily stand up and leave the building. Whether the plaintiff actively resisted being carried away is irrelevant. According to Officer xxx's account, the plaintiff's resistance was limited to tensing his arms, lying down from a seated position onto his side, or turning from his side onto his chest and crossing his arms. In this operational situation, the threat of using the nerve pressure technique was still permissible.
The prior warning of the use of nerve pressure techniques was not unnecessary in this case pursuant to Section 70 Paragraph 1 Sentence 3 of the Lower Saxony Public Safety and Order Act (Nds. SOG), because the circumstances did not permit it, in particular because the immediate application of the coercive measure was necessary to avert an imminent danger. According to the legal definition in Section 2 No. 1b of the Nds. SOG, an imminent danger is a danger in which the harmful event has already begun or in which this event is imminent or will occur in the very near future with near certainty. Such a situation did not exist on the day of the operation when Police Officer xxx applied nerve pressure techniques to the plaintiff. The plaintiff, who was the first of the group of squatters to be led down the stairs, did indeed immediately fall back down to the ground floor after voluntarily and independently descending the stairs on the ground floor. However, it is not apparent that the plaintiff's behavior on the stairs threatened to cause a backup that would have exposed the immediately following police officers and the other squatters to the risk of slipping and seriously injuring themselves on the slippery stairs. This danger could easily have been avoided by those following briefly standing in front of or on the stairs without sustaining any harm until the area around the stairs on the ground floor was clear again.
Since the application of direct coercion in the form of nerve pressure technique above the plaintiff's nose does not already meet the requirements for the threat of a coercive measure, the question, disputed between the parties, of whether this pressure technique was proportionate is not decisive.
The decision on costs follows from Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO).
The decision regarding provisional enforceability follows from §§ 167 VwGO, 708 No. 10, 711 ZPO.
There are no grounds for granting leave to appeal pursuant to Section 132 Paragraph 2 of the Administrative Court Procedure Act.
The following is information on legal remedies.
