Focus Rule of Law – Police violence: “Head lever technique” (“Kopfhebeltechnik”) against a 71-year-old man, Landau prosecutor’s office closes investigation (Published on 16/09/2022)

I. Walk in Landau on 13 December 2021 and the proportionality of police action

On Monday, 13 December 2021, according to press reports, several hundred citizens were walking through the city center of Landau in the Palatinate region. The police saw this as a violation of the protective measures in place at the time against the spread of the “Corona” virus, stood in the way of the walkers and carried out identity checks.

This included an elderly man, 71 years old according to the Landau public prosecutor’s office, on the market square there. Video recordings show how several police officers demand his ID card, which he apparently refuses. Four police officers surround him, there is a discussion. Suddenly, one of the police officers grabs the man by the neck from behind and throws him to the ground with full force. The video was published and commented e.g. on reitschuster.de (cf. the article of 15/12/2021 „Schockierend: Polizei reißt alten Mann brutal zu Boden – Massive Gewalt bei einer Ausweiskontrolle“ [“Shocking: police brutally pull old man to the ground – Massive violence during an ID check”]).

From the point of view of the author, this police action was disproportionate and thus a case for the public prosecutor’s office.

II. Criminal complaint against the police officers involved in the incident for assault

On 22 December 2021, I filed a criminal complaint (German language) against the police officers involved in the incident, in particular for assault, and asked to be informed about the outcome of the investigation. In a letter dated 19 January 2022 (German language), the Landau public prosecutor’s office informed me of the file number of the proceedings.

III. Investigation by the Landau public prosecutor’s office closed

In a message dated 8 August 2022 (German language), the Landau public prosecutor’s office announced that it had closed the investigation because it considered the police’s handling of the man to be justified. The explanations in the three-page letter are very revealing.

In the introduction, it is explained that the reason for the operation was that around 200 people, “who at least in part could be attributed to the so-called Querdenker scene, gathered among others on the town hall square” (ibid., p. 1, last para., translation from German language). There had been a danger that there would be violations of the 29th “Corona-Bekämpfungsverordnung” of the state of Rhineland-Palatinate [“Regulation on the prevention of the Corona virus”] (“29th CoBeLVO”), which was in force at the time (ibid.). The accused police officers had “checked participants of the gathering, who appeared in small groups, did not wear masks and did not observe the distance requirement within the small groups, to see whether they were persons of the same household or at most of another household within the meaning of sec. 4 (1) of the 29th CoBeLVO”, in order to otherwise initiate fine proceedings against them for an administrative offense (sec. 25 no. 5 of the 29th CoBeLVO) (ibid., p. 1/2, translation from German language).

Said 71-year-old man had been a participant in a group in which “four people stood together without masks and without the necessary distance” (ibid., p. 2, first para., translation from German language). He had refused to give his personal details and claimed not to have any identification papers with him. The acting police officers had thereupon explained to him under indication of the legal basis to search him for the determination of his identity (ibid.). The man had nevertheless “stubbornly” refused to establish his identity and also refused to be searched (ibid.). The police officers had therefore “decided to carry out the announced search” and had explained to the man that he “had to tolerate the measures” (ibid., translation from German language).

The Landau public prosecutor’s office describe the following incidents as follows (ibid., p. 2/3, translation from German language):

“The person concerned reacted indignantly to this address and replied that ‘something would happen’ if he was touched by the officers and that there would be ‘rumbling’ if the officers tried to enforce the search. This threat of violence in the event of enforcement of a lawful official act constitutes a crime of resistance to law enforcement officers. Thus, from this time, the measure of the identity determination became also necessary under the aspect of a criminal offense. Due to the announcement of violence and the way the person concerned behaved during the entire time he was approached by the officers, it was also obvious to them that he would actually counter the sovereign measure with violence. From the officers’ point of view, a threatened use of force was also obvious because the person concerned completely denied them any sovereign action, as he declared that he had ‘deregistered from the system’ and that the ‘BRD-GmbH [meaning the Federal Republic of Germany] had no authorization whatsoever’ to take sovereign measures against him.

As a result, the police officers found themselves in a situation in which, due to their sovereign duty, they were called upon to control a person who rejected the state and its representatives and from whom, due to this attitude and the announcement of violence, an incalculable potential danger emanated. Therefore, the officers took the decision to fix the person concerned, whereby the fixation should on the one hand be as gentle as possible for the person to be controlled, but on the other hand should certainly avoid a fight with an uncertain risk of injury for the officers. For this purpose, the officers used the so-called head lever technique [Kopfhebeltechnik], in which the person is brought off balance so that he falls on his buttocks and can then be fixed. This procedure complies with the applicable standards of police training and practice for safe restraint for carrying out checks on persons where resistance is expected.”

According to the investigations, it was said to be clear that the facts of the case took place in the manner described. This followed from the statements of the police officers and “to a large extent” also from the person concerned himself as well as from the available video material (ibid., p. 3, second para., translation from German language). The final assessment of the Landau public prosecutor’s office is as follows (ibid., p. 3, third and fourth para., translation from German language):

“On the basis of this, the police officers could assume that they had to expect violent attacks by the person to be checked in the event of the enforcement of the already announced direct coercion in the form of the search. The action of the police officers was not objectionable. The head lever technique applied ensured on the one hand that the officers were not involved in a fight and that self-protection was thus satisfied. On the other hand, it ensured that the person concerned could be placed on his buttocks, which, in contrast to an uncontrolled fall onto other parts of the body, which would have to be feared in the event of a violent confrontation, posed the lowest risk of injury. Therefore, the measure was suitable and necessary to prevent the threatened violence and represented the mildest means in this respect.

Because police officers, who have the sovereign task of enforcing applicable law and legal ordinances such as the 29th CoBeLVO, do not have to engage in a fight with an undetermined outcome and accept their own injuries in the event of threatened violent resistance to the measures taken to enforce them. In order to prevent violent resistance, police practice uses leverage techniques that prevent a dynamic struggle and yet pose the lowest risk of injury to the person involved. The defendants made use of this in a legally unobjectionable manner. (…) Taking into account the above considerations, the conduct of the police officers was not unlawful, so that there is no sufficient suspicion of a criminal assault in office or of an unlawful coercion. There were also no indications of further criminal conduct. The proceedings were therefore to be discontinued.”

IV. Assessment

First of all, it should be recalled once again that proportionality is a basic requirement for the legality of any state action. For this to be the case, this action must first pursue a legitimate aim; it must also be suitable, necessary and appropriate for achieving this aim. In particular, this applies to police measures, which is also expressly regulated in the Police Act of the State of Rhineland-Palatinate (“PolG RP”) (cf. sec. 2 PolG RP). This means that even a police measure which may as such be legitimate, is illegal in its entirety if the principle of proportionality is not observed in its execution, because the manner of police action is recognizably disproportionate to the desired result, i.e. it is either not suitable for this purpose, not necessary or not appropriate.

The action of the police against the 71-year-old man can hardly be considered proportionate, once again the contrary statements of the public prosecutor’s office are not convincing in the least.

1. The context of the event

First of all, it is noticeable that the public prosecutor’s office assigns the events – as already in the case of the elderly lady who apparently died in connection with measures taken by the Berlin police – to the “so-called Querdenker scene” (cf. the notice of 8 August 2022, p. 1, last paragraph). What relevance this should have for the legal assessment is not clear. As is well known, the principle of proportionality applies without restriction and equally to every addressee of police action – so-called equal application of the law, cf. Art. 3 (1) of the German Grundgesetz – , so that it does not matter whether the addressees are so-called “Querdenker”, “right-wingers”, “left-wingers” or groups with other labels. All are to be treated equally in accordance with the principle of proportionality. If this is not done, the police action is unlawful and the disproportionate actions are potentially punishable under criminal law.

In addition, the 71-year-old man in question is placed by the Landau public prosecutor’s office in the context of the “Reichsbürger scene”, which made an “impending use of violence” by him appear “obvious” from the perspective of the acting police officers (ibid., p. 2, penultimate para., translation from German). These would have had to control a person “who rejects the state and its representatives and from whom, due to this attitude and the announcement of violence, an incalculable potential danger emanated” (ibid., p. 2, last para.). The factual basis of these statements by the Landau public prosecutor’s office is unclear. Here, too, however, it should be remembered that the principle of proportionality of police action in any case also applies without restriction to so-called “Reichsbürger”. The Landau public prosecutor’s office should be aware of this.

2. Impending violence on the part of the 71-year-old?

If one looks at the publicly available video recording, it is difficult to see the man’s propensity for violence as claimed by the Landau public prosecutor’s office. The man does not behave aggressively. He does discuss (the question asked in Palatine dialect can be heard “Are we in a banana republic or are we in Germany?” [translated from German language]), but he moves calmly and has both hands tucked into his jacket pockets at first and one hand at the end, which is not exactly the usual behavior of someone who intends to use violence. Conversely, he also does not seem to expect any violence on the part of the police. It is unclear whether the public prosecutor’s office in Landau has further video recordings and what they show, but at least on the basis of the said publicly available video material, which shows the situation immediately before and after the police measure, a threatening use of force on the part of the man is not apparent. Thus, it is also not comprehensible from which circumstances the public prosecutor’s office Landau derives its thesis that an “incalculable potential danger” emanated from this man.

Apart from that: The man is 71 years old, and he is directly confronted by four police officers in protective gear, most of whom tower over him by about a head, i.e. who are far superior to him physically and who are also in the majority. Here, too, the question arises as to what relevant danger can emanate from a 71-year-old man under these circumstances.

3. “Head lever technique“ against a 71-year old

The statements of the public prosecutor’s office Landau about the so-called “head lever technique” used against the man also cause great astonishment. This is said to bring the person concerned off balance “so that he falls on his buttocks and can then be fixed” (ibid., p. 3, first para., translation from German language). It was said to be a procedure that “complies with the applicable standards of police training and practice” for a “safe restraint for carrying out checks on persons where resistance is expected” (ibid., translation from German language). The technique also ensured “that the person concerned could be placed on his buttocks”, which “in contrast to an uncontrolled fall onto other parts of the body, which would have to be feared in the event of a violent confrontation, posed the lowest risk of injury” (ibid., p. 3, third para, translation from German language). The measure was therefore considered suitable and necessary to prevent the threatened violence and was also the mildest means (ibid.).

The video recording mentioned in the introduction shows the execution of the said “head lever technique”. It can hardly be said that the man was gently “put down” on his buttocks. Rather, the man is seized by the acting policeman from behind at the neck and smashed onto the stony ground unrestrained. The policeman could probably have put the man down on his buttocks gently without further ado, but he did not do so. It is obvious that the consequences of such an action, especially against an elderly person, can be serious for his health. Against the background of the rather passive behavior of the man documented in the publicly available video, this behavior is all the more incomprehensible. It is irrelevant for the legal assessment whether this procedure – according to the statements of the public prosecutor’s office Landau – allegedly complies with “the applicable standards of police training and practice”. This already seems doubtful for the situation at hand, in any case, it is not the assessment under criminal law that has to be oriented towards alleged “police standards”, but vice versa these standards have to comply with the legal requirements.

From the point of view of the author and on the basis of the publicly available information on the incident to date, the specific police action against the man was disproportionate and therefore unlawful. If he was to be restrained, whereby a legitimate reason for this cannot be readily inferred from the publicly available material to date, this obviously did not require a “head lever technique”. Rather, the four police officers in protective gear facing the man would undoubtedly have been able to enforce this in a different way. If a policeman had grabbed him on each side, he would hardly have been able to resist this in a relevant way, if only because of his hands being in his jacket pockets. If the said “head lever technique” is nevertheless used, it is in any case not necessary to throw an elderly person from behind and with full force, back first, onto a stone floor, taking the risk of the most serious injuries. This impact could have been mitigated easily. In addition, there is also a lack of appropriateness of this action, because the unrestrained throwing down of the man was – as described above – not the mildest means to fix him.

The decision of the public prosecutor’s office in Landau shows once again that disproportionate use of force by police officers is apparently not prosecuted by the public prosecutor’s offices and thus receives a carte blanche, which further encourages such police behavior. The other side of this coin is that both the police and the public prosecutor’s offices are rapidly losing the trust of the citizens.

It will be interesting to see if and when politicians address this increasingly urgent problem.

(Head picture: Police action against the 71-year old man
on 13 December 2021 in Landau,
source: www.reitschuster.de)

If you wish to support my work, you can do so here. Many thanks!