S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7835
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 25, 2021
                                ___________
 
 Introduced  by  M. of A. PERRY, FERNANDEZ, CRUZ, MEEKS -- (at request of
   the Attorney General) -- read once and referred 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:
 
   Section 1. Section 35.30 of the penal law, as added by chapter  73  of
 the laws of 1968, the opening paragraph of subdivision 1, subdivisions 2
 and  3,  the  opening  paragraph  and paragraph (a) of subdivision 4 and
 subdivision 5 as amended by chapter 511 of the laws of  2004,  paragraph
 (c)  of subdivision 1 as amended by chapter 843 of the laws of 1980, and
 paragraph (b) of subdivision 4 as amended by chapter 264 of the laws  of
 2003, is amended to read as follows:
 § 35.30 Justification;  use  of physical force in making an arrest or in
           preventing an escape.
   1. A police officer or a peace officer, in the course of effecting  or
 attempting  to  effect an arrest THAT THE OFFICER REASONABLY BELIEVES IS
 LAWFUL, or of preventing or attempting to prevent the escape from custo-
 dy, of a person whom he or she reasonably believes to have committed  an
 offense, may use physical force when and to the extent he or she reason-
 ably  believes  such to be necessary to effect the arrest, or to prevent
 the escape from custody, or in self-defense or to defend a third  person
 from what he or she reasonably believes to be the use or imminent use of
 physical  force;  except that deadly physical force may be used for such
 purposes only when he or she reasonably believes that:
   (a) [The offense committed by such person was:
   (i) a felony or an attempt to commit a felony  involving  the  use  or
 attempted  use  or  threatened  imminent use of physical force against a
 person; or

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

 A                                                          LBD10783-02-1

 A. 7835                             2

   (ii) kidnapping, arson, escape in the first degree,  burglary  in  the
 first  degree  or  any attempt to commit such a crime] THERE IS PROBABLE
 CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED A FELONY INVOLVING  DEATH
 OR  SERIOUS  BODILY INJURY, AND THE OFFICER REASONABLY BELIEVES (I) SUCH
 PERSON IS ARMED WITH A FIREARM OR OTHER DEADLY WEAPON, (II) THE INDIVID-
 UAL  WOULD  CAUSE DEATH OR SERIOUS BODILY INJURY TO ANOTHER IF NOT IMME-
 DIATELY APPREHENDED, (III) THAT NO  LESS-LETHAL  FORCE  ALTERNATIVES  OR
 NON-FORCE TACTICS OR TECHNIQUES ARE SUFFICIENT TO SUBDUE THE PERSON, AND
 (IV)  THAT  THE OFFICER'S USE OF DEADLY FORCE DOES NOT CREATE A SUBSTAN-
 TIAL RISK OF SERIOUS BODILY INJURY TO ANY PERSONS OTHER THAN THE  PERSON
 AGAINST WHOM THE DEADLY FORCE IS DIRECTED; or
   (b)  [The  offense  committed or attempted by such person was a felony
 and that, in the course of resisting arrest therefor  or  attempting  to
 escape from custody, such person is armed with a firearm or deadly weap-
 on; or
   (c)]  Regardless of the particular offense which is the subject of the
 arrest or attempted escape, the use of deadly physical force  is  neces-
 sary  to  defend  the  police officer or peace officer or another person
 from what the officer reasonably believes to be the use or imminent  use
 of deadly physical force.
   2.  FOR  THE  PURPOSES OF THIS SECTION, A PERSON REASONABLY BELIEVES A
 USE OF FORCE IS NECESSARY WHEN (A) HE OR SHE ACTUALLY HOLDS THAT BELIEF,
 AND (B) A REASONABLE PERSON UNDER THE SAME CIRCUMSTANCES WOULD HOLD THAT
 BELIEF.
   3. FOR THE PURPOSES OF THIS SECTION, PHYSICAL FORCE SHALL  BE  CONSID-
 ERED  NECESSARY WHEN THERE ARE NO REASONABLE ALTERNATIVE MEANS TO EFFECT
 THE LAWFUL OBJECTIVE AND AVOID THE USE OF FORCE OR REDUCE  THE  SEVERITY
 OF  THE FORCE USED, INCLUDING THE USE OF LESS-LETHAL FORCE ALTERNATIVES,
 NON-FORCE TACTICS OR TECHNIQUES THAT ARE INTENDED TO STABILIZE THE SITU-
 ATION AND REDUCE THE IMMEDIACY OF THE THREAT, SUCH AS  DISTANCE,  COVER,
 CONTAINMENT, TACTICAL REPOSITIONING, REQUESTING ADDITIONAL OFFICERS, AND
 SURVEILLANCE,  VERBAL  COMMUNICATION OR DE-ESCALATION AND THE DEPLOYMENT
 OF SPECIALIZED EQUIPMENT OR  RESOURCES,  SUCH  AS  OFFICERS  TRAINED  IN
 CRISIS  INTERVENTION,  OR MENTAL HEALTH PROFESSIONALS. AN ALTERNATIVE TO
 THE USE OF PHYSICAL FORCE MAY BE A REASONABLE  ALTERNATIVE  EVEN  IF  IT
 EXTENDS THE OVERALL DURATION OF THE INTERACTION.
   4.  FOR  THE  PURPOSES  OF  THIS SECTION, A THREAT SHALL BE CONSIDERED
 IMMINENT WHEN THE PERSON REASONABLY APPEARS TO HAVE THE PRESENT ABILITY,
 OPPORTUNITY, AND APPARENT INTENT TO IMMEDIATELY INFLICT INJURY.
   5. THE USE OF ANY LEVEL OF FORCE BY A POLICE OFFICER OR PEACE  OFFICER
 MAY  BE DEEMED NOT JUSTIFIED PURSUANT TO SUBDIVISION ONE OF THIS SECTION
 IF SUCH OFFICER ENGAGED IN CONDUCT THAT CREATED A SUBSTANTIAL AND UNJUS-
 TIFIABLE RISK THAT FORCE WOULD BECOME NECESSARY.
   6. THE USE OF ANY LEVEL OF FORCE BY A POLICE OFFICER OR PEACE  OFFICER
 SHALL BE PRESUMPTIVELY NOT JUSTIFIED PURSUANT TO SUBDIVISION ONE OF THIS
 SECTION  IF  APPLIED  TO  A  PERSON  WHO  HAS BEEN RENDERED INCAPABLE OF
 RESISTING ARREST.
   7. The fact that a police officer or a peace officer is  justified  in
 using  deadly  physical  force  under circumstances prescribed in [para-
 graphs (a) and (b) of] subdivision one OF THIS SECTION does not  consti-
 tute  justification for reckless conduct by such police officer or peace
 officer amounting to an offense against  or  with  respect  to  innocent
 persons whom he or she is not seeking to arrest or retain in custody.
   [3.]  8. A person who has been directed by a police officer or a peace
 officer to assist such police officer or  peace  officer  to  effect  an
 arrest  or  to  prevent  an  escape from custody may use physical force,

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 other than deadly physical force, when and to the extent that he or  she
 reasonably  believes such to be necessary to carry out such police offi-
 cer's or peace officer's direction, unless he  or  she  knows  that  the
 arrest  or  prospective  arrest is not or was not authorized and may use
 deadly physical force under such circumstances when:
   (a) He or she reasonably believes such to be  necessary  for  self-de-
 fense  or  to  defend  a  third  person  from  what he or she reasonably
 believes to be the use or imminent use of deadly physical force; or
   (b) He or she is directed or authorized  by  such  police  officer  or
 peace  officer  to use deadly physical force unless he or she knows that
 the police officer or peace officer is  not  authorized  to  use  deadly
 physical force under the circumstances.
   [4.]  9.  A  private  person  acting on his or her own account may use
 physical force, other than deadly physical force,  upon  another  person
 when  and  to  the  extent that he or she reasonably believes such to be
 necessary to effect an arrest or to prevent the escape from custody of a
 person whom he or she reasonably believes to have committed  an  offense
 and  who in fact has committed such offense; and may use deadly physical
 force for such purpose when he or she reasonably  believes  such  to  be
 necessary to[:
   (a)  Defend] DEFEND himself, herself or a third person from what he or
 she reasonably believes to be the use or imminent use of deadly physical
 force[; or
   (b)  Effect  the  arrest  of  a  person  who  has  committed   murder,
 manslaughter  in  the  first  degree, robbery, forcible rape or forcible
 criminal sexual act and who is in immediate flight therefrom].
   [5.] 10. A guard, police officer or peace officer who is charged  with
 the  duty of guarding prisoners in a detention facility, as that term is
 defined in section 205.00 OF THIS CHAPTER, or while  in  transit  to  or
 from a detention facility, may use physical force when and to the extent
 that  he  or she reasonably believes such to be necessary to prevent the
 escape of a prisoner from a detention facility or from custody while  in
 transit thereto or therefrom.
   §  2.  The  penal  law is amended by adding three new sections 120.75,
 120.76 and 120.77 to read as follows:
 § 120.75 EXCESSIVE USE OF FORCE BY A POLICE OFFICER OR A  PEACE  OFFICER
            IN THE THIRD DEGREE.
   A  PEACE OFFICER OR POLICE OFFICER IS GUILTY OF EXCESSIVE USE OF FORCE
 BY A POLICE OFFICER OR A PEACE OFFICER IN THE THIRD DEGREE WHEN, IN  THE
 COURSE  OF  EFFECTING  AN  ARREST, PREVENTING AN ESCAPE FROM CUSTODY, OR
 OTHERWISE IN FURTHERANCE OF AN AUTHORIZED LAW ENFORCEMENT OBJECTIVE,  HE
 OR SHE:
   1. INTENTIONALLY USES A DEGREE OF PHYSICAL FORCE AGAINST A PERSON THAT
 IS  GROSSLY  IN  EXCESS  OF THE DEGREE OF FORCE THAT A REASONABLE PERSON
 UNDER THE SAME CIRCUMSTANCES WOULD BELIEVE TO BE  NECESSARY  TO  ACHIEVE
 THE INTENDED OUTCOME; AND
   2. SUCH USE OF PHYSICAL FORCE CAUSES PHYSICAL INJURY TO THAT PERSON OR
 TO ANOTHER PERSON.
   EXCESSIVE  USE  OF FORCE BY A POLICE OFFICER OR A PEACE OFFICER IN THE
 THIRD DEGREE IS A CLASS A MISDEMEANOR.
 § 120.76 EXCESSIVE USE OF FORCE BY A POLICE OFFICER OR A  PEACE  OFFICER
            IN THE SECOND DEGREE.
   A  PEACE OFFICER OR POLICE OFFICER IS GUILTY OF EXCESSIVE USE OF FORCE
 BY A POLICE OFFICER OR A PEACE OFFICER IN THE SECOND DEGREE WHEN  HE  OR
 SHE,  IN  THE  COURSE  OF EFFECTING AN ARREST, PREVENTING AN ESCAPE FROM

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 CUSTODY, OR OTHERWISE IN FURTHERANCE OF AN  AUTHORIZED  LAW  ENFORCEMENT
 OBJECTIVE:
   1. INTENTIONALLY USES A DEGREE OF PHYSICAL FORCE AGAINST A PERSON THAT
 IS  GROSSLY  IN  EXCESS  OF THE DEGREE OF FORCE THAT A REASONABLE PERSON
 UNDER THE SAME CIRCUMSTANCES WOULD BELIEVE TO BE  NECESSARY  TO  ACHIEVE
 THE INTENDED OUTCOME; AND
   2.  SUCH  USE OF PHYSICAL FORCE CAUSES SERIOUS PHYSICAL INJURY TO THAT
 PERSON OR TO ANOTHER PERSON.
   EXCESSIVE USE OF FORCE BY A POLICE OFFICER OR A PEACE OFFICER  IN  THE
 SECOND DEGREE IS A CLASS D FELONY.
 § 120.77 EXCESSIVE  USE  OF FORCE BY A POLICE OFFICER OR A PEACE OFFICER
            IN THE FIRST DEGREE.
   A PEACE OFFICER OR POLICE OFFICER IS GUILTY OF EXCESSIVE USE OF  FORCE
 BY  A  POLICE  OFFICER OR A PEACE OFFICER IN THE FIRST DEGREE WHEN HE OR
 SHE, IN THE COURSE OF EFFECTING AN ARREST,  PREVENTING  AN  ESCAPE  FROM
 CUSTODY,  OR  OTHERWISE  IN FURTHERANCE OF AN AUTHORIZED LAW ENFORCEMENT
 OBJECTIVE:
   1. INTENTIONALLY USES A DEGREE OF PHYSICAL FORCE AGAINST A PERSON THAT
 IS GROSSLY IN EXCESS OF THE DEGREE OF FORCE  THAT  A  REASONABLE  PERSON
 UNDER  THE  SAME  CIRCUMSTANCES WOULD BELIEVE TO BE NECESSARY TO ACHIEVE
 THE INTENDED OUTCOME; AND
   2. SUCH USE OF PHYSICAL FORCE CAUSES DEATH TO THAT PERSON OR TO ANOTH-
 ER PERSON.
   EXCESSIVE USE OF FORCE BY A POLICE OFFICER OR A PEACE OFFICER  IN  THE
 FIRST DEGREE IS A CLASS C FELONY.
   § 3. This act shall take effect immediately.