S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9656
 
                           I N  A S S E M B L Y
 
                             January 31, 2020
                                ___________
 
 Introduced  by M. of A. AUBRY -- read once and referred to the Committee
   on Codes
 
 AN ACT to amend the penal law, in relation to the justification for  the
   use of force in a homicide by a peace officer or police officer
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. The penal law is amended by adding two new  sections  35.35
 and 35.40 to read as follows:
 §  35.35  JUSTIFICATION; USE OF FORCE BY A PEACE OFFICER OR POLICE OFFI-
            CER.
   HOMICIDE IS JUSTIFIABLE WHEN COMMITTED BY A PEACE  OFFICER  OR  POLICE
 OFFICER  AND  THOSE ACTING BY THEIR COMMAND IN THEIR AID AND ASSISTANCE,
 UNDER EITHER OF THE FOLLOWING CIRCUMSTANCES:
   1. IN OBEDIENCE TO ANY JUDGMENT OF A COMPETENT COURT; OR
   2. WHEN THE HOMICIDE RESULTS FROM A PEACE OFFICER'S  OR  POLICE  OFFI-
 CER'S  USE  OF  FORCE  THAT  IS IN COMPLIANCE WITH SECTION 35.40 OF THIS
 ARTICLE.
 § 35.40 JUSTIFICATION; USE OF FORCE BY A PEACE OFFICER OR POLICE OFFICER
            REQUIREMENTS.
   1. THE LEGISLATURE FINDS AND DECLARES ALL OF THE FOLLOWING:
   (A) THAT THE AUTHORITY TO USE PHYSICAL FORCE, CONFERRED ON PEACE OFFI-
 CERS OR POLICE OFFICERS BY THIS SECTION,  IS  A  SERIOUS  RESPONSIBILITY
 THAT  SHALL  BE  EXERCISED JUDICIOUSLY AND WITH RESPECT FOR HUMAN RIGHTS
 AND DIGNITY AND FOR THE SANCTITY OF EVERY HUMAN  LIFE.  THE  LEGISLATURE
 FURTHER FINDS AND DECLARES THAT EVERY PERSON HAS A RIGHT TO BE FREE FROM
 EXCESSIVE USE OF FORCE BY OFFICERS ACTING UNDER COLOR OF LAW.
   (B)  AS SET FORTH IN THIS SECTION, IT IS THE INTENT OF THE LEGISLATURE
 THAT PEACE OFFICERS OR POLICE OFFICERS USE DEADLY FORCE ONLY WHEN NECES-
 SARY IN DEFENSE OF HUMAN LIFE. IN DETERMINING WHETHER  DEADLY  FORCE  IS
 NECESSARY,  OFFICERS  SHALL  EVALUATE  EACH  SITUATION  IN  LIGHT OF THE
 PARTICULAR CIRCUMSTANCES OF EACH CASE  AND  SHALL  USE  OTHER  AVAILABLE
 RESOURCES  AND  TECHNIQUES  IF REASONABLY SAFE AND FEASIBLE TO AN OBJEC-
 TIVELY REASONABLE OFFICER.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13652-02-9

 A. 9656                             2
 
   (C) THAT THE DECISION BY A PEACE OFFICER  OR  POLICE  OFFICER  TO  USE
 FORCE  SHALL  BE  EVALUATED  CAREFULLY  AND THOROUGHLY, IN A MANNER THAT
 REFLECTS THE GRAVITY OF THAT AUTHORITY AND THE SERIOUS  CONSEQUENCES  OF
 THE  USE  OF  FORCE  BY  PEACE  OFFICERS OR POLICE OFFICERS, IN ORDER TO
 ENSURE THAT OFFICERS USE FORCE CONSISTENT WITH LAW AND AGENCY POLICIES.
   (D)  THAT  THE  DECISION  BY  A PEACE OFFICER OR POLICE OFFICER TO USE
 FORCE SHALL BE EVALUATED FROM THE PERSPECTIVE OF A REASONABLE OFFICER IN
 THE SAME SITUATION, BASED ON THE TOTALITY OF THE CIRCUMSTANCES KNOWN  TO
 OR PERCEIVED BY THE OFFICER AT THE TIME, RATHER THAN WITH THE BENEFIT OF
 HINDSIGHT  AND  THAT THE TOTALITY OF THE CIRCUMSTANCES SHALL ACCOUNT FOR
 OCCASIONS WHEN OFFICERS MAY BE FORCED  TO  MAKE  QUICK  JUDGMENTS  ABOUT
 USING FORCE.
   (E)  THAT  INDIVIDUALS  WITH PHYSICAL, MENTAL HEALTH, DEVELOPMENTAL OR
 INTELLECTUAL DISABILITIES ARE SIGNIFICANTLY MORE  LIKELY  TO  EXPERIENCE
 GREATER  LEVELS  OF  PHYSICAL FORCE DURING POLICE INTERACTIONS, AS THEIR
 DISABILITY MAY  AFFECT  THEIR  ABILITY  TO  UNDERSTAND  OR  COMPLY  WITH
 COMMANDS  FROM  PEACE OFFICERS OR POLICE OFFICERS.  IT IS ESTIMATED THAT
 INDIVIDUALS WITH DISABILITIES ARE  INVOLVED  IN  BETWEEN  ONE-THIRD  AND
 ONE-HALF OF ALL FATAL ENCOUNTERS WITH LAW ENFORCEMENT.
   2.  ANY  PEACE  OFFICER  OR POLICE OFFICER WHO HAS REASONABLE CAUSE TO
 BELIEVE THAT THE PERSON TO BE ARRESTED HAS COMMITTED  A  PUBLIC  OFFENSE
 MAY  USE  OBJECTIVELY  REASONABLE FORCE TO EFFECT THE ARREST, TO PREVENT
 ESCAPE OR TO OVERCOME RESISTANCE.
   3. NOTWITHSTANDING SUBDIVISION TWO OF THIS SECTION, A PEACE OFFICER OR
 POLICE OFFICER IS JUSTIFIED IN USING DEADLY FORCE  UPON  ANOTHER  PERSON
 ONLY  WHEN THE OFFICER REASONABLY BELIEVES, BASED ON THE TOTALITY OF THE
 CIRCUMSTANCES, THAT SUCH FORCE IS NECESSARY FOR EITHER OF THE  FOLLOWING
 REASONS:
   (A)  TO  DEFEND  AGAINST AN IMMINENT THREAT OF DEATH OR SERIOUS BODILY
 INJURY TO THE OFFICER OR TO ANOTHER PERSON.
   (B) TO APPREHEND A FLEEING PERSON FOR ANY FELONY  THAT  THREATENED  OR
 RESULTED  IN  DEATH  OR SERIOUS BODILY INJURY, IF THE OFFICER REASONABLY
 BELIEVES THAT THE PERSON WILL CAUSE DEATH OR SERIOUS  BODILY  INJURY  TO
 ANOTHER  UNLESS IMMEDIATELY APPREHENDED. WHERE FEASIBLE, A PEACE OFFICER
 OR POLICE OFFICER SHALL, PRIOR TO THE  USE  OF  FORCE,  MAKE  REASONABLE
 EFFORTS  TO IDENTIFY THEMSELVES AS A PEACE OFFICER OR POLICE OFFICER AND
 TO WARN THAT DEADLY FORCE MAY BE USED, UNLESS THE OFFICER HAS OBJECTIVE-
 LY REASONABLE GROUNDS TO BELIEVE THE PERSON IS AWARE OF THOSE FACTS.
   4. A PEACE OFFICER OR  POLICE  OFFICER  SHALL  NOT  USE  DEADLY  FORCE
 AGAINST A PERSON BASED ON THE DANGER THAT PERSON POSES TO THEMSELVES, IF
 AN OBJECTIVELY REASONABLE OFFICER WOULD BELIEVE THE PERSON DOES NOT POSE
 AN  IMMINENT THREAT OF DEATH OR SERIOUS BODILY INJURY TO THE PEACE OFFI-
 CER OR POLICE OFFICER OR TO ANOTHER PERSON.
   5. A PEACE OFFICER OR POLICE OFFICER WHO MAKES OR ATTEMPTS TO MAKE  AN
 ARREST  NEED  NOT  RETREAT OR DESIST FROM THEIR EFFORTS BY REASON OF THE
 RESISTANCE OR THREATENED RESISTANCE OF  THE  PERSON  BEING  ARRESTED.  A
 PEACE OFFICER OR POLICE OFFICER SHALL NOT BE DEEMED AN AGGRESSOR OR LOSE
 THE  RIGHT TO SELF-DEFENSE BY THE USE OF OBJECTIVELY REASONABLE FORCE IN
 COMPLIANCE WITH SUBDIVISIONS TWO AND THREE OF THIS SECTION TO EFFECT THE
 ARREST OR TO PREVENT ESCAPE OR TO OVERCOME RESISTANCE. FOR THE  PURPOSES
 OF  THIS  SUBDIVISION, "RETREAT" DOES NOT MEAN TACTICAL REPOSITIONING OR
 OTHER DE-ESCALATION TACTICS.
   6. FOR PURPOSES OF  THIS  SECTION,  THE  FOLLOWING  DEFINITIONS  SHALL
 APPLY:

 A. 9656                             3
 
   (A)  "DEADLY  FORCE" MEANS ANY USE OF FORCE THAT CREATES A SUBSTANTIAL
 RISK OF CAUSING DEATH OR  SERIOUS  BODILY  INJURY,  INCLUDING,  BUT  NOT
 LIMITED TO, THE DISCHARGE OF A FIREARM.
   (B)  A  THREAT  OF  DEATH OR SERIOUS BODILY INJURY IS "IMMINENT" WHEN,
 BASED ON THE TOTALITY OF THE CIRCUMSTANCES, A REASONABLE OFFICER IN  THE
 SAME  SITUATION  WOULD  BELIEVE  THAT  A PERSON HAS THE PRESENT ABILITY,
 OPPORTUNITY AND APPARENT INTENT TO IMMEDIATELY CAUSE  DEATH  OR  SERIOUS
 BODILY  INJURY TO THE PEACE OFFICER OR POLICE OFFICER OR ANOTHER PERSON.
 AN IMMINENT HARM IS NOT MERELY A FEAR OF  FUTURE  HARM,  NO  MATTER  HOW
 GREAT  THE  FEAR AND NO MATTER HOW GREAT THE LIKELIHOOD OF THE HARM, BUT
 IS ONE  THAT,  FROM  APPEARANCES,  SHALL  BE  INSTANTLY  CONFRONTED  AND
 ADDRESSED.
   (C) "TOTALITY OF THE CIRCUMSTANCES" MEANS ALL FACTS KNOWN TO THE PEACE
 OFFICER  OR  POLICE  OFFICER  AT  THE TIME, INCLUDING THE CONDUCT OF THE
 OFFICER AND THE SUBJECT LEADING UP TO THE USE OF DEADLY FORCE.
   § 2. This act shall take effect immediately.