S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2983
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 26, 2021
                                ___________
 
 Introduced  by  Sens.  PARKER,  BAILEY, BIAGGI, COMRIE -- 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 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00750-01-1

 S. 2983                             2
 
 PARTICULAR  CIRCUMSTANCES  OF  EACH  CASE  AND SHALL USE OTHER AVAILABLE
 RESOURCES AND TECHNIQUES IF REASONABLY SAFE AND FEASIBLE  TO  AN  OBJEC-
 TIVELY REASONABLE OFFICER.
   (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.

 S. 2983                             3
 
   6. FOR PURPOSES OF  THIS  SECTION,  THE  FOLLOWING  DEFINITIONS  SHALL
 APPLY:
   (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.