Bill Text: NY S08449 | 2023-2024 | General Assembly | Introduced

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Bill Title: Relates to justifying the use of force by police officers and peace officers and to the excessive use of police force.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced) 2024-01-31 - REFERRED TO CODES [S08449 Detail]

Download: New_York-2023-S08449-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8449

                    IN SENATE

                                    January 31, 2024
                                       ___________

        Introduced  by  Sens.  PARKER, GIANARIS, HOYLMAN-SIGAL -- read twice and
          ordered printed, and when printed to be committed to the Committee  on
          Codes

        AN  ACT  to  amend  the  penal law, in relation to justifying the use of
          force by police officers and peace officers and to the  excessive  use
          of police force

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

     1    Section 1. Section 35.30 of the penal law, as added by chapter  73  of
     2  the laws of 1968, the opening paragraph of subdivision 1, subdivisions 2
     3  and  3,  the  opening  paragraph  and paragraph (a) of subdivision 4 and
     4  subdivision 5 as amended by chapter 511 of the laws of  2004,  paragraph
     5  (c)  of subdivision 1 as amended by chapter 843 of the laws of 1980, and
     6  paragraph (b) of subdivision 4 as amended by chapter 264 of the laws  of
     7  2003, is amended to read as follows:
     8  § 35.30 Justification;  use  of physical force in making an arrest or in
     9            preventing an escape.
    10    1. A police officer or a peace officer, in the course of effecting  or
    11  attempting  to  effect an arrest that the officer reasonably believes is
    12  lawful, or of preventing or attempting to prevent the escape from custo-
    13  dy, of a person whom he or she reasonably believes to have committed  an
    14  offense, may use physical force when and to the extent he or she reason-
    15  ably  believes  such to be necessary to effect the arrest, or to prevent
    16  the escape from custody, or in self-defense or to defend a third  person
    17  from what he or she reasonably believes to be the use or imminent use of
    18  physical  force;  except that deadly physical force may be used for such
    19  purposes only when he or she reasonably believes that:
    20    (a) [The offense committed by such person was:
    21    (i) a felony or an attempt to commit a felony  involving  the  use  or
    22  attempted  use  or  threatened  imminent use of physical force against a
    23  person; or
    24    (ii) kidnapping, arson, escape in the first degree,  burglary  in  the
    25  first  degree  or  any attempt to commit such a crime] There is probable
    26  cause to believe that the person has committed a felony involving  death

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11245-02-4
        S. 8449                             2

     1  or  serious  bodily injury, and the officer reasonably believes (i) such
     2  person is armed with a firearm or other deadly weapon, (ii) the individ-
     3  ual would cause death or serious bodily injury to another if  not  imme-
     4  diately  apprehended,  (iii)  that  no less-lethal force alternatives or
     5  non-force tactics or techniques are sufficient to subdue the person, and
     6  (iv) that the officer's use of deadly force does not create  a  substan-
     7  tial  risk of serious bodily injury to any persons other than the person
     8  against whom the deadly force is directed; or
     9    (b) [The offense committed or attempted by such person  was  a  felony
    10  and  that,  in  the course of resisting arrest therefor or attempting to
    11  escape from custody, such person is armed with a firearm or deadly weap-
    12  on; or
    13    (c)] Regardless of the particular offense which is the subject of  the
    14  arrest  or  attempted escape, the use of deadly physical force is neces-
    15  sary to defend the police officer or peace  officer  or  another  person
    16  from  what the officer reasonably believes to be the use or imminent use
    17  of deadly physical force.
    18    2. For the purposes of this section, a person  reasonably  believes  a
    19  use of force is necessary when (a) he or she actually holds that belief,
    20  and (b) a reasonable person under the same circumstances would hold that
    21  belief.
    22    3.  For  the purposes of this section, physical force shall be consid-
    23  ered necessary when there are no reasonable alternative means to  effect
    24  the  lawful  objective and avoid the use of force or reduce the severity
    25  of the force used, including the use of less-lethal force  alternatives,
    26  non-force tactics or techniques that are intended to stabilize the situ-
    27  ation  and  reduce the immediacy of the threat, such as distance, cover,
    28  containment, tactical repositioning, requesting additional officers, and
    29  surveillance, verbal communication or de-escalation and  the  deployment
    30  of  specialized  equipment  or  resources,  such  as officers trained in
    31  crisis intervention, or mental health professionals. An  alternative  to
    32  the  use  of  physical  force may be a reasonable alternative even if it
    33  extends the overall duration of the interaction.
    34    4. For the purposes of this section,  a  threat  shall  be  considered
    35  imminent when the person reasonably appears to have the present ability,
    36  opportunity, and apparent intent to immediately inflict injury.
    37    5.  The use of any level of force by a police officer or peace officer
    38  may be deemed not justified pursuant to subdivision one of this  section
    39  if such officer engaged in conduct that created a substantial and unjus-
    40  tifiable risk that force would become necessary.
    41    6.  The use of any level of force by a police officer or peace officer
    42  shall be presumptively not justified pursuant to subdivision one of this
    43  section if applied to a  person  who  has  been  rendered  incapable  of
    44  resisting arrest.
    45    7.  The  fact that a police officer or a peace officer is justified in
    46  using deadly physical force under  circumstances  prescribed  in  [para-
    47  graphs  (a) and (b) of] subdivision one of this section does not consti-
    48  tute justification for reckless conduct by such police officer or  peace
    49  officer  amounting  to  an  offense  against or with respect to innocent
    50  persons whom he or she is not seeking to arrest or retain in custody.
    51    [3.] 8. A person who has been directed by a police officer or a  peace
    52  officer  to  assist  such  police  officer or peace officer to effect an
    53  arrest or to prevent an escape from  custody  may  use  physical  force,
    54  other  than deadly physical force, when and to the extent that he or she
    55  reasonably believes such to be necessary to carry out such police  offi-
    56  cer's  or  peace  officer's  direction,  unless he or she knows that the
        S. 8449                             3

     1  arrest or prospective arrest is not or was not authorized  and  may  use
     2  deadly physical force under such circumstances when:
     3    (a)  He  or  she reasonably believes such to be necessary for self-de-
     4  fense or to defend a  third  person  from  what  he  or  she  reasonably
     5  believes to be the use or imminent use of deadly physical force; or
     6    (b)  He  or  she  is  directed or authorized by such police officer or
     7  peace officer to use deadly physical force unless he or she  knows  that
     8  the  police  officer  or  peace  officer is not authorized to use deadly
     9  physical force under the circumstances.
    10    [4.] 9. A private person acting on his or  her  own  account  may  use
    11  physical  force,  other  than deadly physical force, upon another person
    12  when and to the extent that he or she reasonably  believes  such  to  be
    13  necessary to effect an arrest or to prevent the escape from custody of a
    14  person  whom  he or she reasonably believes to have committed an offense
    15  and who in fact has committed such offense; and may use deadly  physical
    16  force  for  such  purpose  when he or she reasonably believes such to be
    17  necessary to[:
    18    (a) Defend] defend himself, herself or a third person from what he  or
    19  she reasonably believes to be the use or imminent use of deadly physical
    20  force[; or
    21    (b)   Effect  the  arrest  of  a  person  who  has  committed  murder,
    22  manslaughter in the first degree, robbery,  forcible  rape  or  forcible
    23  criminal sexual act and who is in immediate flight therefrom].
    24    [5.]  10. A guard, police officer or peace officer who is charged with
    25  the duty of guarding prisoners in a detention facility, as that term  is
    26  defined  in  section  205.00  of this chapter, or while in transit to or
    27  from a detention facility, may use physical force when and to the extent
    28  that he or she reasonably believes such to be necessary to  prevent  the
    29  escape  of a prisoner from a detention facility or from custody while in
    30  transit thereto or therefrom.
    31    § 2. The penal law is amended by adding  three  new  sections  120.75,
    32  120.76 and 120.77 to read as follows:
    33  § 120.75 Excessive  use  of force by a police officer or a peace officer
    34             in the third degree.
    35    A peace officer or police officer is guilty of excessive use of  force
    36  by  a police officer or a peace officer in the third degree when, in the
    37  course of effecting an arrest, preventing an  escape  from  custody,  or
    38  otherwise  in furtherance of an authorized law enforcement objective, he
    39  or she:
    40    1. intentionally uses a degree of physical force against a person that
    41  is grossly in excess of the degree of force  that  a  reasonable  person
    42  under  the  same  circumstances would believe to be necessary to achieve
    43  the intended outcome; and
    44    2. such use of physical force causes physical injury to that person or
    45  to another person.
    46    Excessive use of force by a police officer or a peace officer  in  the
    47  third degree is a class A misdemeanor.
    48  § 120.76 Excessive  use  of force by a police officer or a peace officer
    49             in the second degree.
    50    A peace officer or police officer is guilty of excessive use of  force
    51  by  a  police officer or a peace officer in the second degree when he or
    52  she, in the course of effecting an arrest,  preventing  an  escape  from
    53  custody,  or  otherwise  in furtherance of an authorized law enforcement
    54  objective:
    55    1. intentionally uses a degree of physical force against a person that
    56  is grossly in excess of the degree of force  that  a  reasonable  person
        S. 8449                             4

     1  under  the  same  circumstances would believe to be necessary to achieve
     2  the intended outcome; and
     3    2.  such  use of physical force causes serious physical injury to that
     4  person or to another person.
     5    Excessive use of force by a police officer or a peace officer  in  the
     6  second degree is a class D felony.
     7  § 120.77 Excessive  use  of force by a police officer or a peace officer
     8             in the first degree.
     9    A peace officer or police officer is guilty of excessive use of  force
    10  by  a  police  officer or a peace officer in the first degree when he or
    11  she, in the course of effecting an arrest,  preventing  an  escape  from
    12  custody,  or  otherwise  in furtherance of an authorized law enforcement
    13  objective:
    14    1. intentionally uses a degree of physical force against a person that
    15  is grossly in excess of the degree of force  that  a  reasonable  person
    16  under  the  same  circumstances would believe to be necessary to achieve
    17  the intended outcome; and
    18    2. such use of physical force causes death to that person or to anoth-
    19  er person.
    20    Excessive use of force by a police officer or a peace officer  in  the
    21  first degree is a class C felony.
    22    § 3. This act shall take effect immediately.