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S06615 Summary:

BILL NOS06615
 
SAME ASNo Same As
 
SPONSORPARKER
 
COSPNSRGIANARIS, HOYLMAN
 
MLTSPNSR
 
Amd §35.30, add §§120.75, 120.76 & 120.77, Pen L
 
Relates to justifying the use of force by police officers and peace officers and to the excessive use of police force.
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S06615 Memo:

Memo not available
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S06615 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6615
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                      May 10, 2021
                                       ___________
 
        Introduced  by  Sen.  PARKER  -- (at request of the Attorney General) --
          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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10783-02-1

        S. 6615                             2

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

        S. 6615                             3
 
     1  other than deadly physical force, when and to the extent that he or  she
     2  reasonably  believes such to be necessary to carry out such police offi-
     3  cer's or peace officer's direction, unless he  or  she  knows  that  the
     4  arrest  or  prospective  arrest is not or was not authorized and may use
     5  deadly physical force under such circumstances when:
     6    (a) He or she reasonably believes such to be  necessary  for  self-de-
     7  fense  or  to  defend  a  third  person  from  what he or she reasonably
     8  believes to be the use or imminent use of deadly physical force; or
     9    (b) He or she is directed or authorized  by  such  police  officer  or
    10  peace  officer  to use deadly physical force unless he or she knows that
    11  the police officer or peace officer is  not  authorized  to  use  deadly
    12  physical force under the circumstances.
    13    [4.]  9.  A  private  person  acting on his or her own account may use
    14  physical force, other than deadly physical force,  upon  another  person
    15  when  and  to  the  extent that he or she reasonably believes such to be
    16  necessary to effect an arrest or to prevent the escape from custody of a
    17  person whom he or she reasonably believes to have committed  an  offense
    18  and  who in fact has committed such offense; and may use deadly physical
    19  force for such purpose when he or she reasonably  believes  such  to  be
    20  necessary to[:
    21    (a)  Defend] defend himself, herself or a third person from what he or
    22  she reasonably believes to be the use or imminent use of deadly physical
    23  force[; or
    24    (b)  Effect  the  arrest  of  a  person  who  has  committed   murder,
    25  manslaughter  in  the  first  degree, robbery, forcible rape or forcible
    26  criminal sexual act and who is in immediate flight therefrom].
    27    [5.] 10. A guard, police officer or peace officer who is charged  with
    28  the  duty of guarding prisoners in a detention facility, as that term is
    29  defined in section 205.00 of this chapter, or while  in  transit  to  or
    30  from a detention facility, may use physical force when and to the extent
    31  that  he  or she reasonably believes such to be necessary to prevent the
    32  escape of a prisoner from a detention facility or from custody while  in
    33  transit thereto or therefrom.
    34    §  2.  The  penal  law is amended by adding three new sections 120.75,
    35  120.76 and 120.77 to read as follows:
    36  § 120.75 Excessive use of force by a police officer or a  peace  officer
    37             in the third degree.
    38    A  peace officer or police officer is guilty of excessive use of force
    39  by a police officer or a peace officer in the third degree when, in  the
    40  course  of  effecting  an  arrest, preventing an escape from custody, or
    41  otherwise in furtherance of an authorized law enforcement objective,  he
    42  or she:
    43    1. intentionally uses a degree of physical force against a person that
    44  is  grossly  in  excess  of the degree of force that a reasonable person
    45  under the same circumstances would believe to be  necessary  to  achieve
    46  the intended outcome; and
    47    2. such use of physical force causes physical injury to that person or
    48  to another person.
    49    Excessive  use  of force by a police officer or a peace officer in the
    50  third degree is a class A misdemeanor.
    51  § 120.76 Excessive use of force by a police officer or a  peace  officer
    52             in the second degree.
    53    A  peace officer or police officer is guilty of excessive use of force
    54  by a police officer or a peace officer in the second degree when  he  or
    55  she,  in  the  course  of effecting an arrest, preventing an escape from

        S. 6615                             4
 
     1  custody, or otherwise in furtherance of an  authorized  law  enforcement
     2  objective:
     3    1. intentionally uses a degree of physical force against a person that
     4  is  grossly  in  excess  of the degree of force that a reasonable person
     5  under the same circumstances would believe to be  necessary  to  achieve
     6  the intended outcome; and
     7    2.  such  use of physical force causes serious physical injury to that
     8  person or to another person.
     9    Excessive use of force by a police officer or a peace officer  in  the
    10  second degree is a class D felony.
    11  § 120.77 Excessive  use  of force by a police officer or a peace officer
    12             in the first degree.
    13    A peace officer or police officer is guilty of excessive use of  force
    14  by  a  police  officer or a peace officer in the first degree when he or
    15  she, in the course of effecting an arrest,  preventing  an  escape  from
    16  custody,  or  otherwise  in furtherance of an authorized law enforcement
    17  objective:
    18    1. intentionally uses a degree of physical force against a person that
    19  is grossly in excess of the degree of force  that  a  reasonable  person
    20  under  the  same  circumstances would believe to be necessary to achieve
    21  the intended outcome; and
    22    2. such use of physical force causes death to that person or to anoth-
    23  er person.
    24    Excessive use of force by a police officer or a peace officer  in  the
    25  first degree is a class C felony.
    26    § 3. This act shall take effect immediately.
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