Bill Text: NY A10114 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to the justified use of physical force; removes requirement that a person facing an imminent physical threat must retreat; provides immunity from civil and criminal liability.

Spectrum: Partisan Bill (Republican 6-0)

Status: (Introduced) 2020-03-12 - referred to codes [A10114 Detail]

Download: New_York-2019-A10114-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          10114

                   IN ASSEMBLY

                                     March 12, 2020
                                       ___________

        Introduced  by  M. of A. DiPIETRO, LiPETRI, STEC, PALMESANO -- read once
          and referred to the Committee on Codes

        AN ACT to amend the penal law, the criminal procedure law and the  civil
          practice  law  and rules, in relation to the justified use of physical
          force

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Section 35.15 of the penal law, as added by chapter 73 of
     2  the laws of 1968, subdivisions 1 and 2 as amended by chapter 511 of  the
     3  laws of 2004, is amended to read as follows:
     4  § 35.15 Justification; use of physical force in defense of a person.
     5    1.  A person may, subject to the provisions of subdivision two of this
     6  section, use physical force upon another person when and to  the  extent
     7  he  or  she  reasonably believes such to be necessary to defend himself,
     8  herself or a third person from what he or she reasonably believes to  be
     9  the use or imminent use of unlawful physical force by such other person,
    10  unless:
    11    (a)  The  latter's  conduct  was  provoked by the actor with intent to
    12  cause physical injury to another person; or
    13    (b) The actor was the initial aggressor; except that in such case  the
    14  use of physical force is nevertheless justifiable if the actor has with-
    15  drawn from the encounter and effectively communicated such withdrawal to
    16  such  other person but the latter persists in continuing the incident by
    17  the use or threatened imminent use of unlawful physical force; or
    18    (c) The physical force involved is the product of a combat  by  agree-
    19  ment not specifically authorized by law.
    20    2.  A  person  may  not  use deadly physical force upon another person
    21  under circumstances specified in subdivision one of this section unless:
    22    (a) The actor reasonably believes that such other person is  using  or
    23  about  to  use  deadly  physical force. [Even in such case, however, the
    24  actor may not use deadly physical force if he or  she  knows  that  with
    25  complete  personal safety, to oneself and others he or she may avoid the
    26  necessity of so doing by retreating; except that the] The actor is under
    27  no duty to retreat if he or she is:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14753-05-0

        A. 10114                            2

     1    (i) in his or her dwelling or any  other  place  that  he  or  she  is
     2  lawfully permitted to be and is not the initial aggressor; or
     3    (ii)  a police officer or peace officer or a person assisting a police
     4  officer or a peace officer at the latter's direction, acting pursuant to
     5  section 35.30 of this article; or
     6    (b) He or she reasonably believes that such other person is committing
     7  or attempting to commit a kidnapping, forcible rape,  forcible  criminal
     8  sexual act or robbery; or
     9    (c) He or she reasonably believes that such other person is committing
    10  or  attempting to commit a burglary, and the circumstances are such that
    11  the use of deadly physical force is authorized by subdivision  three  of
    12  section 35.20 of this article.
    13    §  2. Section 35.05 of the penal law is amended by adding a new subdi-
    14  vision 3 to read as follows:
    15    3. When a defendant has offered the defense of justification  for  the
    16  threatened  or  actual use of deadly force, the court shall instruct the
    17  jury that they shall not be permitted to  consider  the  possibility  of
    18  retreat  as  a  factor in determining whether a person who threatened or
    19  used deadly force reasonably believed that the force  was  necessary  to
    20  prevent death or serious bodily injury to himself or another.
    21    §  3. Section 35.10 of the penal law is amended by adding a new subdi-
    22  vision 7 to read as follows:
    23    7. A person who is justified in threatening or  using  physical  force
    24  against  another  person in defense of himself, herself, another person,
    25  or property pursuant to this section is immune from criminal  and  civil
    26  liability  for  any  damages  incurred  by the aggressor pursuant to the
    27  application of reasonable physical force or threatened use of force.
    28    § 4. Subdivision 1 of section 120.14 of the penal law, as  amended  by
    29  chapter 222 of the laws of 1994, is amended to read as follows:
    30    1.  He or she intentionally places or attempts to place another person
    31  in reasonable fear of physical injury, serious physical injury or  death
    32  by  displaying  a deadly weapon, dangerous instrument or what appears to
    33  be a pistol, revolver, rifle, shotgun, machine  gun  or  other  firearm;
    34  provided,  however, that where a person is justified in the use of phys-
    35  ical force upon another person in self-defense or  defense  of  a  third
    36  person,  or in defense of premises under the provisions of article thir-
    37  ty-five of this chapter, such person  shall  not  be  liable  under  the
    38  provisions of this subdivision; or
    39    § 5. Section 140.10 of the criminal procedure law is amended by adding
    40  a new subdivision 4 to read as follows:
    41    4.   No person shall be arrested pursuant to this section for a use of
    42  force, unless the police officer believes that there is  probable  cause
    43  to  find that the use of force was not justifiable under article thirty-
    44  five of the penal law.
    45    § 6. Section 180.10 of the criminal procedure law is amended by adding
    46  a new subdivision 8 to read as follows:
    47    8. Upon arraignment, if a defendant offers the defense  of  justifica-
    48  tion  to  any  allegation involving the use of physical force, including
    49  deadly physical force, the court shall dismiss the  charges  unless  the
    50  court  determines  by clear and convincing evidence that the use of such
    51  physical force by the defendant was not reasonable or justified.
    52    § 7. Rule 3211 of the civil practice  law  and  rules  is  amended  by
    53  adding a new subdivision (i) to read as follows:
    54    (i)  (1)  Motion  to dismiss; use of force; justification. A party may
    55  move to dismiss a cause of action on the basis  that  the  moving  party
    56  used  reasonable force under section 35.15 of the penal law. Upon filing

        A. 10114                            3

     1  a motion to dismiss, the court shall hold a hearing prior to  trial  and
     2  shall grant such motion unless the party responding to the motion proves
     3  by  clear  and convincing evidence that the use of force was not reason-
     4  able or justified.
     5    (2)  The  court  shall  award  reasonable  attorney fees, court costs,
     6  compensation for any loss of income and all other expenses incurred by a
     7  person in defense of any civil action arising from the person's  use  of
     8  reasonable force pursuant to section 35.15 of the penal law if the court
     9  finds that the defendant's actions were justified and dismisses the case
    10  under this subdivision.
    11    §  8.  The  civil  practice  law  and rules is amended by adding a new
    12  section 3012-c to read as follows:
    13    § 3012-c. Certificate of merit in certain actions to  recover  damages
    14  for  personal  injury,  injury to property or wrongful death. (a) In any
    15  action to recover damages for personal injury,  injury  to  property  or
    16  wrongful  death  brought  by an individual who committed a crime against
    17  the respondent, where the injuries complained of resulted from a use  of
    18  physical force or deadly physical force by the respondent at the time of
    19  the  commission  of  the  crime, the complaint shall be accompanied by a
    20  certificate, signed by the attorney for the plaintiff,  certifying  that
    21  the attorney has reviewed the facts of the case and that, to the best of
    22  such  attorney's knowledge, information and belief there is a reasonable
    23  basis for the commencement of such action and that  the  respondent  was
    24  not  justified  in  the  use  of physical force or deadly physical force
    25  against the plaintiff.
    26    (b) Where a certificate is required pursuant to this section, a single
    27  certificate shall be filed for each action even if more than one defend-
    28  ant has been named in the complaint or is subsequently named.
    29    (c) If the attorney for the plaintiff fails to provide the certificate
    30  as required by subdivision (a) of this section the court may dismiss the
    31  complaint or make such final or conditional order with  regard  to  such
    32  failure as is just including but not limited to denial of the accrual of
    33  any  interest,  costs,  attorneys'  fees and other fees, relating to the
    34  underlying mortgage debt. Any such dismissal shall be without  prejudice
    35  and shall not be on the merits.
    36    §  9.  This  act shall take effect immediately; provided however, that
    37  section five of this act shall take effect upon the repeal  of  subdivi-
    38  sion  4  of  section  140.10  of  the criminal procedure law pursuant to
    39  section 59 of chapter 222 of the laws of 1994, as amended.
feedback