DECISION
11 LA 359/19
1 A 296/16
In the administrative law case
of xxx,
– Plaintiff and respondent in the application for leave to appeal –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
The State of Lower Saxony,
represented by the Göttingen Police Directorate,
Groner Landstraße 51, 37081 Göttingen
– Defendant and applicant for leave to appeal –
Regarding
the finding of illegality of police coercive measures
– application for leave to appeal –
The Higher Administrative Court of Lower Saxony – 11th Senate – decided on August 14, 2020:
The defendant's application for leave to appeal against the judgment of the Göttingen Administrative Court – 1st Chamber – of 22 May 2019 is rejected.
The defendant shall bear the costs of the admission procedure.
The value in dispute for the admission procedure is set at EUR 5,000.
REASONS
The defendant's application for leave to appeal against the judgment of the Administrative Court is admissible, but unfounded.
The plaintiff is challenging police actions taken against him during a police operation on April 10, 2014, to secure a deportation. On that day, the plaintiff was in the hallway of the apartment building "xxx," where one of the deportees lived, along with 20 to 30 other people. The police officers were unable to enter the building through the front door, as it was blocked from the inside. Pepper spray was released into the hallway through a crack, hitting the plaintiff, who was standing inside by the door. After gaining access to the hallway via a basement apartment, the police officers separated the people who were linked arm-in-arm in the hallway and from the objects they were clinging to. The plaintiff was among this group, holding onto the front door handle. After two police officers had initially tried unsuccessfully to remove the plaintiff from the door handle using release techniques, including applying pressure to pain points, Officer xxx took over the task. He first attempted to pry the plaintiff's fingers free by bending them back and then tried to force him to let go using pain-inducing holds. Only when he put the plaintiff in a so-called head control hold, in which he grasped the plaintiff's head with his right arm and pressed it against his body armor, did the plaintiff release the door handle. The officer then held the plaintiff and moved him toward the stairwell to carry him outside through the basement apartment. During this process, the officer punched the plaintiff in the face twice. Another police officer, Officer xxx, then used a head control hold to subdue the plaintiff and led him to the stairwell, where both fell down the stairs. From the basement, the plaintiff was brought outside through a basement window. There he collapsed and received emergency medical treatment. In response to the action brought by the plaintiff on June 3, 2014, the Administrative Court, in the contested judgment, determined that the use of tear gas and physical violence in the form of pain holds and punches against the plaintiff by officers of the defendant on April 10, 2014, was unlawful.
The defendant's application for leave to appeal against this decision is unsuccessful because the grounds for appeal asserted by him under Section 124 Paragraph 2 Nos. 1 and 3 of the Administrative Court Procedure Act (VwGO) do not exist or have not been sufficiently demonstrated.
1. The appeal is not admissible due to serious doubts as to the correctness of the contested decision (§ 124 para. 2 no. 1 VwGO).
According to the jurisprudence of the Federal Constitutional Court, serious doubts exist when a single, fundamental legal principle or a significant finding of fact is challenged by cogent counterarguments. It is not necessary that, in the summary review possible only in the admissibility proceedings, the success of the appeal is more likely than its failure (cf. Federal Constitutional Court, Decision of 21 December 2009 – 1 BvR 812/09 –, NJW 2010, 1062, juris, para. 16, with further references). Furthermore, serious doubts about the correctness of a judgment do not exist if only individual legal principles, factual findings, or omitted findings give rise to doubts, but the judgment is clearly correct in its outcome for other reasons (Federal Administrative Court, Decision of March 10, 2004 – 7 AV 4/03 –, NVwZ-RR 2004, 542, juris, para. 9). The defendant has failed, in substantiating his application for leave to appeal, to challenge significant factual findings or a legal principle underlying the decision with cogent counterarguments.
The Administrative Court reasoned that the measures in dispute, which were taken during the enforcement of a removal order also directed at the plaintiff, were unlawful due to a lack of sufficiently qualified warning. The use of physical force against the plaintiff by police officers PK xxx and PK xxx, and by PK xxx through punches, each constituted a measure of direct coercion under Section 69 Paragraph 2 of the Lower Saxony Public Safety and Order Act (Nds. SOG). However, a qualified warning of these coercive measures was lacking.
The legal basis for the measures in dispute, which the Administrative Court rightly considered to be the exercise of direct coercion, is Sections 65 Paragraph 1 No. 3, 69 of the Lower Saxony Public Safety and Order Act (Nds. SOG) in the version of the Act of January 19, 2005 (Lower Saxony Law Gazette p. 9, last amended by the Act of June 19, 2013, Lower Saxony Law Gazette p. 158) applicable at the time relevant for assessing the factual and legal situation of the official measures.
As the Senate stated in its judgment of October 28, 2016 (- 11 LB 209/15 -, NdsVBl 2017, 120, juris, para. 27 et seq.), the use of direct force pursuant to Section 74 Paragraph 1 Sentence 1 of the Lower Saxony Public Safety and Order Act (Nds. SOG) must be threatened before its application. According to Section 70 Paragraph 3 Sentence 1 of the Nds. SOG, the threat must refer to specific coercive measures. This provision in enforcement law reflects the general requirement of sufficient substantive definiteness for administrative acts, as codified in Section 37 Paragraph 1 of the Administrative Procedure Act (VwVfG). The requirement of definiteness is intended to ensure the predictability of police action. When direct force is used, the person affected should be given clarity 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 instance of physical intervention against a person. This applies particularly if it is a single enforcement measure without any breaks in time. It is not always possible to foresee in advance which specific measures will be required when applying direct force. However, if aids to physical force 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 are to be used, these must be specified when threatening the use of direct force.
An exception to the principle that, in cases involving the use of physical force against persons under 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 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 warning 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.
The Administrative Court expressly followed these principles established by the Senate, as evidenced by the grounds for the contested judgment. In doing so, the Administrative Court considered the use of physical force by police officers to remove the plaintiff from the handle of the front door and take him from the building to the outside area to be a single measure for the enforcement of the order to leave the premises, which had also been issued against him. Furthermore, the Administrative Court held that the Senate's reasoning applied equally to the pain-inducing holds used here, but that the required qualified warning had not been given to the plaintiff before the holds were applied. The warning must specify the technique used as well as its consequences (the causing of pain).
Insofar as the defendant argues, in support of his application for leave to appeal, that the Administrative Court failed to recognize that PK xxx had qualifiedly threatened the use of nerve pressure techniques as a means of coercion, so that the prerequisites for the application of nerve pressure techniques were met, this does not give rise to serious doubts about the correctness of the contested decision.
The Senate already has considerable doubts about the defendant's assertion in the appeal proceedings that PK xxx expressly threatened the plaintiff with the use of direct force before applying it, essentially saying: "If you don't move away from the door, I'll have to remove you. That will hurt – you don't want that, and neither do I." The defendant thus deviates significantly from his original argument and presentation of the facts in the initial proceedings. In his written submission of December 29, 2016, in which he responded to the Senate's judgment of October 28, 2016 – 11 LB 209/15 – following the reopening of the proceedings, he stated that, unlike the facts underlying the Senate's decision, the nerve pressure technique did not need to be specifically threatened to the plaintiff, as the immediate application of the coercive measure was necessary to avert an imminent danger. In his written submission of August 18, 2018, the defendant, referring to the testimony of Police Officer xxx in the oral proceedings before the Göttingen Local Court in criminal case 34 Ds 32 JS 21154/14 (5/15), stated that the threat of coercive measures had been made to the blockaders in the stairwell by the team of officers xxx and xxx, and that it was apparent to the plaintiff that he also belonged to this group. The circumstances did not permit any further individual threat against the plaintiff. In contrast, in his written submission of May 8, 2019, in response to the summons to the oral hearing, the defendant stated that Police Officer xxx had expressly threatened the plaintiff with the use of direct force before applying it. In the oral hearing before the Administrative Court on May 22, 2019, the defendant's representative stated for the first time that a consultation with police officer xxx prior to the hearing had revealed that, when threatening coercive measures, he had used the words "Do XY, otherwise I will have to hurt you," as is also in accordance with police training. The defendant neither offered an explanation for the conflicting statements nor substantiated the new assertion with, for example, an official statement from police officer xxx. A conclusive explanation would have been particularly necessary given that the relevant information cannot be gleaned from the reports of police officers PK xxx (pp. 43 ff.), PK xxx (pp. 93 ff.), and PK xxx (pp. 97 ff.) dated April 11, 2014, contained in the attached public prosecutor's investigation file for case 32 JS 21154/14 (Appendix 007). The statements of the police officers who testified as witnesses in the criminal proceedings 34 Ds 32 JS 21154/14 (5/15) before the Göttingen Local Court during the oral hearings of June 8, 2017, June 19, 2017, and June 29, 2017 (see transcripts SH 7, Appendix 013) also provide no support for the defendant's new allegations. Police officer xxx was not heard as a witness by the Göttingen District Court. Furthermore, the plaintiff expressly denied in the oral proceedings that police officer xxx had threatened coercive measures with the wording quoted by the defendant's representative.
Regardless, the Administrative Court's reasoning for dismissing the defendant's new submissions does not, for the reasons stated by the defendant, raise any serious doubts about the correctness of the decision. The Administrative Court deemed the defendant's argument, presented for the first time during the oral proceedings, that xxx had expressly announced that his measures would be painful, irrelevant because the threat of direct force, even if accompanied by the warning that its application would be painful, does not meet the requirements for a warning prior to the use of nerve pressure techniques. In such cases, the warning also requires the specification of the technique to be used. However, it is undisputed that no specific warning naming the technique used (here: pain holds or nerve pressure techniques) was given; at that time, such a warning was also not required from the police's perspective, because case law had not yet defined the relevant obligations.
The defendant based his appeal on the grounds of serious doubt as to the correctness of the contested judgment pursuant to Section 124 Paragraph 2 No. 1 of the Code of Administrative Court Procedure (VwGO), arguing that PK xxx had expressly informed the plaintiff of the potential pain of the threatened coercive measure in the wording of the threat, thereby enabling the plaintiff to prevent the infliction of pain by releasing the door. The defendant further argued that the specific coercive measure to be used had not been explicitly named. However, this reasoning fails to address the arguments, deemed decisive by the Administrative Court, regarding the irrelevance of his new submissions. Insofar as the defendant refers to his arguments under II.1.c regarding the ground for appeal based on the fundamental importance of the case pursuant to Section 124 Paragraph 2 No. 3 of the Code of Administrative Court Procedure (VwGO), it is unnecessary to determine whether this reference meets the requirements for substantiation under Section 124a Paragraph 4 Sentence 4 VwGO (cf. Higher Administrative Court of Lower Saxony, Decision of November 11, 2004 – 2 LA 422/03 –, juris, para. 20). This is because these arguments also provide no grounds for seriously doubting the correctness of the contested decision. The defendant argues that, according to the purpose of the threat, it is not necessary to name the specific means employed (here, nerve pressure technique), but rather that it suffices to threaten the potential pain of direct coercion. The explicit naming of the method used constitutes an inappropriately strict formalism. This does not achieve a higher degree of specificity, because it is not generally understood what a nerve pressure technique is. An explanation of the mechanism of action of nerve pressure techniques in every individual case would be excessive and would no longer meet the requirements for effective risk prevention. The defendant's argument is unsuccessful.
In its judgment of October 28, 2016 (- 11 LB 209/15 -, loc. cit., juris, para. 27 et seq.), the Senate deemed an exception to the principle that, in cases of 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, to be necessary when the person concerned is to be compelled to perform an action by the application of a nerve pressure technique. As the Senate emphasized, the principle of predictability in police action requires that the deliberate and intentional infliction of more than merely insignificant pain through the application of a nerve pressure technique within the context of direct force be specifically threatened. The facts underlying the Senate's decision concerned the application of a painful nerve pressure technique over the plaintiff's nose. According to the findings of the Administrative Court, nerve pressure techniques or pain holds were used on the plaintiff in the present case. If an exceptional case exists in which the use of coercive measures must be threatened separately, this, as the Administrative Court correctly explained, requires specifying the concrete coercive measure and thus also the technique used. The defendant's objection that this does not achieve a higher degree of specificity because the term "nerve pressure technique" is not generally understood is unfounded. The principle of specificity, which is intended to ensure the predictability of police action, is not satisfied in the exceptional case at hand simply by generally indicating that the use of direct coercion may be painful. This is because very different means with varying effects on physical integrity can be used when direct coercion is applied. The person affected only gains clarity about the expected infringements on their physical integrity when these are specified in more detail. The Senate fails to understand how the threat of using a painful nerve pressure technique or pain-inducing holds could be incomprehensible to the person affected. This is to be distinguished from the question – which the Administrative Court denied – of whether a separate threat of the coercive measure was unnecessary in the specific operational situation pursuant to Section 70 Paragraph 1 Sentence 3 of the Lower Saxony Public Safety and Order Act (Nds. SOG), because the immediate application of the coercive measure was necessary to avert an imminent danger.
2. The appeal is also not admissible on the grounds of fundamental importance of the legal matter pursuant to Section 124 Paragraph 2 No. 3 of the Administrative Court Procedure Act.
A case is considered to have fundamental importance only if it raises a legal or factual question that is relevant to the decision in the appeal process, amenable to clarification across different cases, and must be clarified in the interest of legal uniformity or the further development of the law. The application for leave to appeal must raise a specific question, demonstrate its relevance to the decision, and (at least) contain an indication of the reason that is intended to justify the existence of fundamental importance (see W.-R. Schenke, in: Kopp/Schenke, VwGO, 25th ed. 2019, § 124, para. 10).
The defendant raised the following questions as requiring clarification:
"whether nerve pressure techniques must always be threatened with a qualified warning and what requirements are placed on this qualified warning."
These questions are not fundamentally important because, insofar as they are amenable to clarification beyond the individual case, as can be seen from the explanations under 1., they have already been clarified in the case law of the Senate by the judgment of October 28, 2016 (- 11 LB 209/15 -, loc. cit., juris, para. 27 f.).
3. Insofar as the Administrative Court found in the contested judgment that the use of tear gas by the defendant's officers against the plaintiff on April 10, 2014, was unlawful because there was also a lack of a qualified warning in this respect, the defendant has not raised any objections, so that in this respect there is already a lack of sufficient presentation of grounds for appeal within the meaning of Section 124a Paragraph 4 Sentence 4 of the Code of Administrative Court Procedure.
The decision on costs follows from Section 154 Paragraph 2 of the Administrative Court Procedure Act (VwGO).
The determination of the value in dispute is based on Sections 47 Paragraphs 1 and 3, 52 Paragraph 2 of the Court Costs Act (GKG).
This decision is final and cannot be appealed (§§ 152 para. 1 VwGO, 68 para. 1 sentence 5, 66 para. 3 sentence 3 GKG).
