STATE OF NEW YORK ________________________________________________________________________ 7272 2023-2024 Regular Sessions IN SENATE May 19, 2023 ___________ Introduced by Sens. PARKER, BAILEY, COMRIE, SEPULVEDA -- 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: 1 Section 1. The penal law is amended by adding two new sections 35.35 2 and 35.40 to read as follows: 3 § 35.35 Justification; use of force by a peace officer or police offi- 4 cer. 5 Homicide is justifiable when committed by a peace officer or police 6 officer and those acting by their command in their aid and assistance, 7 under either of the following circumstances: 8 1. In obedience to any judgment of a competent court; or 9 2. When the homicide results from a peace officer's or police offi- 10 cer's use of force that is in compliance with section 35.40 of this 11 article. 12 § 35.40 Justification; use of force by a peace officer or police officer 13 requirements. 14 1. The legislature finds and declares all of the following: 15 (a) That the authority to use physical force, conferred on peace offi- 16 cers or police officers by this section, is a serious responsibility 17 that shall be exercised judiciously and with respect for human rights 18 and dignity and for the sanctity of every human life. The legislature 19 further finds and declares that every person has a right to be free from 20 excessive use of force by officers acting under color of law. 21 (b) As set forth in this section, it is the intent of the legislature 22 that peace officers or police officers use deadly force only when neces- 23 sary in defense of human life. In determining whether deadly force is 24 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. LBD03318-01-3S. 7272 2 1 particular circumstances of each case and shall use other available 2 resources and techniques if reasonably safe and feasible to an objec- 3 tively reasonable officer. 4 (c) That the decision by a peace officer or police officer to use 5 force shall be evaluated carefully and thoroughly, in a manner that 6 reflects the gravity of that authority and the serious consequences of 7 the use of force by peace officers or police officers, in order to 8 ensure that officers use force consistent with law and agency policies. 9 (d) That the decision by a peace officer or police officer to use 10 force shall be evaluated from the perspective of a reasonable officer in 11 the same situation, based on the totality of the circumstances known to 12 or perceived by the officer at the time, rather than with the benefit of 13 hindsight and that the totality of the circumstances shall account for 14 occasions when officers may be forced to make quick judgments about 15 using force. 16 (e) That individuals with physical, mental health, developmental or 17 intellectual disabilities are significantly more likely to experience 18 greater levels of physical force during police interactions, as their 19 disability may affect their ability to understand or comply with 20 commands from peace officers or police officers. It is estimated that 21 individuals with disabilities are involved in between one-third and 22 one-half of all fatal encounters with law enforcement. 23 2. Any peace officer or police officer who has reasonable cause to 24 believe that the person to be arrested has committed a public offense 25 may use objectively reasonable force to effect the arrest, to prevent 26 escape or to overcome resistance. 27 3. Notwithstanding subdivision two of this section, a peace officer or 28 police officer is justified in using deadly force upon another person 29 only when the officer reasonably believes, based on the totality of the 30 circumstances, that such force is necessary for either of the following 31 reasons: 32 (a) To defend against an imminent threat of death or serious bodily 33 injury to the officer or to another person. 34 (b) To apprehend a fleeing person for any felony that threatened or 35 resulted in death or serious bodily injury, if the officer reasonably 36 believes that the person will cause death or serious bodily injury to 37 another unless immediately apprehended. Where feasible, a peace officer 38 or police officer shall, prior to the use of force, make reasonable 39 efforts to identify themselves as a peace officer or police officer and 40 to warn that deadly force may be used, unless the officer has objective- 41 ly reasonable grounds to believe the person is aware of those facts. 42 4. A peace officer or police officer shall not use deadly force 43 against a person based on the danger that person poses to themselves, if 44 an objectively reasonable officer would believe the person does not pose 45 an imminent threat of death or serious bodily injury to the peace offi- 46 cer or police officer or to another person. 47 5. A peace officer or police officer who makes or attempts to make an 48 arrest need not retreat or desist from their efforts by reason of the 49 resistance or threatened resistance of the person being arrested. A 50 peace officer or police officer shall not be deemed an aggressor or lose 51 the right to self-defense by the use of objectively reasonable force in 52 compliance with subdivisions two and three of this section to effect the 53 arrest or to prevent escape or to overcome resistance. For the purposes 54 of this subdivision, "retreat" does not mean tactical repositioning or 55 other de-escalation tactics.S. 7272 3 1 6. For purposes of this section, the following definitions shall 2 apply: 3 (a) "Deadly force" means any use of force that creates a substantial 4 risk of causing death or serious bodily injury, including, but not 5 limited to, the discharge of a firearm. 6 (b) A threat of death or serious bodily injury is "imminent" when, 7 based on the totality of the circumstances, a reasonable officer in the 8 same situation would believe that a person has the present ability, 9 opportunity and apparent intent to immediately cause death or serious 10 bodily injury to the peace officer or police officer or another person. 11 An imminent harm is not merely a fear of future harm, no matter how 12 great the fear and no matter how great the likelihood of the harm, but 13 is one that, from appearances, shall be instantly confronted and 14 addressed. 15 (c) "Totality of the circumstances" means all facts known to the peace 16 officer or police officer at the time, including the conduct of the 17 officer and the subject leading up to the use of deadly force. 18 § 2. This act shall take effect immediately.