NY State Senate Bill 2023-S8449

Senate Bill S8449

2023-2024 Legislative Session

Relates to justifying the use of force by police officers and peace officers and to the excessive use of police force

download bill text pdf

Current Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 31, 2024	referred to codes

co-Sponsors

2023-S8449 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §35.30, add §§120.75, 120.76 & 120.77, Pen L
Versions Introduced in 2021-2022 Legislative Session:: S6615

2023-S8449 (ACTIVE) - Summary

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

2023-S8449 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8449

SPONSOR: PARKER
 
TITLE OF BILL:

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

 
PURPOSE:

To improve law enforcement practices and increase accountability
concerning civilian deaths caused by police officers or peace officers,
this legislation amends the law that justifies use of force by police
officers and peace officers in order to ensure that alternatives to
force or lower levels of force are used before officers use significant
physical force or lethal force on civilians; and it ensures that prose-
cutors have increased options to identify a just outcome where law
enforcement causes harm to individuals.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends section 35.30 of the Penal Law. The amend-
ments would:

* withdraw the authority for police officers and peace officers to use
lethal force on individuals where they reasonably believe that the
offense committed by such person was 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 where the person engaged in kidnap-
ping, arson, escape in the first degree, burglary in the first degree or
any attempt to commit those crimes.

* withdraw the authority for police officers and peace officers to use
lethal force on individuals where they reasonably believe 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 custo-
dy, such person is armed with a firearm or deadly weapon.

* Authorize the use of lethal force by a police officer or peace officer
where (a) there is probable cause to believe that the person has commit-
ted 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 individual would cause death or serious bodily
injury to another if not immediately apprehended (iii) that no less-
lethal force alternatives or non-force tactics or techniques are suffi-
cient to subdue the person, and (iv) that the officer's use of deadly
force does not create a substantial risk of serious bodily injury to any
persons other than the person against whom the deadly force is directed.
*State that for purposes of section 35.30 of the Penal Law, a person
reasonably believes a use of force is necessary when (i) he or she actu-
ally holds that belief, and (ii) a reasonable person under the same
circumstances would hold that belief.

* State that for purposes of section 35.30 of the Penal Law, physical
force is "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.

* State that for purposes of section 35.30 of the Penal Law, a threat is
"imminent" when the person reasonably appears to have the present abili-
ty, opportunity, and apparent intent to immediately inflict injury.

* Establish that any level of force by a police officer or peace officer
may be deemed not justified pursuant to subdivision one of section 35.30
of the Penal Law if such officer engaged in conduct that created a
substantial and unjustifiable risk that force would become necessary.

* Establish that 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.

* Withdraw the authority of a private citizen to use deadly physical
force when he or she reasonably believes it is to be necessary to 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.

Section 2 of the bill adds three new sections to the Penal Law, section
120.75, 120.76, and 120.77. Those sections would:

* Establish the crime of excessive use of force by a police officer or
peace officer in the third degree.

* Establish the crime of excessive use of force by a police officer or
peace officer in the second degree.

* Establish the crime of excessive use of force by a police officer or
peace officer in the first degree.

Section 3 of the bill sets forth the effective date.

 
JUSTIFICATION:

The current law that justifies use of force, including lethal force, by
police officers and peace officers fails to prioritize the preservation
of the lives of civilians. It authorizes law enforcement to use lethal
force even where an individual does not present an imminent threat of
harm to the officer or another person and fails to require law enforce-
ment to avoid the use of force through tactics including de-escalation
or verbal warnings or use lower levels of force where those alternative
means of intervention are reasonable.

2023-S8449 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8449
 
                             I N  S E N A T E
 
                             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:
 
   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
   (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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11245-02-4
 S. 8449                             2
 
 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,
 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
 S. 8449                             3
 
 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
 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
 S. 8449                             4
 
 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.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Senate Bill S8449

Share this bill

Sponsored By

Kevin S. Parker