Senate Bill S5416

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5416
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               March 4, 2021
                                ___________
 
 Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the executive law, in relation to requiring the  state's
   model  law  enforcement  use  of force policy to conform to the United
   Nations basic principles on the use  of  force  and  firearms  by  law
   enforcement  officials  and the United Nations code of conduct for law
   enforcement officials
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subparagraphs 1, 2 and 3 of paragraph (d) of subdivision 4
 of section 840 of the executive law, as added by section 1 of part ZZ of
 chapter 55 of the laws of 2019, are amended to read as follows:
   (1) Establish and regularly update a  model  law  enforcement  use  of
 force  policy suitable for adoption by any agency that employs police or
 peace officers. SUCH MODEL LAW ENFORCEMENT USE OF FORCE POLICY SHALL  BE
 CONSISTENT  WITH THE UNITED NATIONS BASIC PRINCIPLES ON THE USE OF FORCE
 AND FIREARMS BY LAW ENFORCEMENT OFFICIALS AND THE UNITED NATIONS CODE OF
 CONDUCT FOR LAW ENFORCEMENT  OFFICIALS,  EXCEPT  THAT  THE  COUNCIL  MAY
 IMPOSE FURTHER AND ADDITIONAL RESTRICTIONS ON THE USE OF FORCE.
   (2)  The  model law enforcement use of force policy shall include, but
 is not limited to:
   (i) information on current law as it relates to the use  of  force  by
 police and peace officers;
   (ii)  guidelines  regarding  when use of force is permitted, INCLUDING
 BUT NOT LIMITED TO:
   (A) A GENERAL DEFINITION OF FORCE;
   (B) A SEPARATE DEFINITION OF LETHAL FORCE THAT  INCLUDES  ANY  USE  OF
 FIREARMS AND OTHER POLICE ACTIONS LIKELY TO CAUSE DEATH OR SERIOUS BODI-
 LY HARM;
   (C)  RESTRICTIONS  ON  THE  USE  OF LETHAL FORCE, WHICH SHALL STRICTLY
 PROHIBIT THE USE OF LETHAL FORCE UNLESS:

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

                                                            LBD06447-01-1

 S. 5416                             2
 
   (I) AN OFFICER OR A THIRD PERSON FACES A DIRECT  THREAT  OF  DEATH  OR
 SERIOUS BODILY HARM;
   (II) THE THREAT FACED IS IMMINENT OR CURRENT; AND
   (III) LESS EXTREME MEASURES SUCH AS PERSUASION OR VERBAL WARNING WOULD
 PROVE  INEFFECTIVE  IN NEUTRALIZING THE THREAT TO LIFE OR SERIOUS BODILY
 HARM; AND
   (D) PROHIBITION ON THE USE OF LETHAL FORCE TO DETAIN A FLEEING  FELON,
 EXCEPT WHEN THE FLEEING OFFENDER OFFERS ARMED RESISTANCE THAT REPRESENTS
 AN  IMMEDIATE  THREAT  TO LIFE OR THREAT OF SERIOUS BODILY HARM AND LESS
 EXTREME MEASURES WOULD BE INEFFECTIVE IN COUNTERING THAT THREAT;
   (iii) requirements for documenting ALL INSTANCES OF THE use of  LETHAL
 force,  INCLUDING  BUT  NOT  LIMITED  TO THE REPORTING AND INVESTIGATORY
 PROCEDURES REFERENCED IN CLAUSE (IV) OF THIS SUBPARAGRAPH AND  THE  DATA
 COLLECTION PROCEDURES REFERENCED IN CLAUSE (X) OF THIS SUBPARAGRAPH;
   (iv)  procedures for investigating use of force incidents, WHICH SHALL
 INCLUDE:
   (A) PROMPT REPORTING TO AN IMMEDIATE SUPERIOR  EACH  TIME  AN  OFFICER
 USES ANY FORCE, FOLLOWED BY A TIMELY INTERNAL INVESTIGATION CONDUCTED BY
 PARTIES  INDEPENDENT  FROM  THE LAW ENFORCEMENT OFFICERS INVOLVED IN THE
 INCIDENT. THIS INTERNAL INVESTIGATION  SHALL  PROVIDE  FOR  DISCIPLINARY
 SANCTIONS, INCLUDING COMMAND AND SUPERIOR RESPONSIBILITY;
   (B)  PROMPT  REPORTING  TO  AN INDEPENDENT AND EXTERNAL OVERSIGHT BODY
 EACH TIME AN OFFICER DISCHARGES  A  FIREARM  OR  OTHERWISE  USES  LETHAL
 FORCE,  FOLLOWED  BY  AN EXTERNAL INVESTIGATION TO DETERMINE WHETHER THE
 USE OF LETHAL FORCE WAS JUSTIFIED UNDER ITEM (C) OF CLAUSE (II) OF  THIS
 SUBPARAGRAPH.  THE EXTERNAL OVERSIGHT BODY SHALL BE COMPRISED OF MEMBERS
 OF THE COMMUNITY AND HAVE IMMEDIATE ACCESS TO ALL OFFICERS AND WITNESSES
 INVOLVED, AS WELL AS ANY REPORTS  OR  INTERNAL  INVESTIGATORY  MATERIALS
 CREATED AS A RESULT OF THE USE OF FORCE INCIDENT. THIS EXTERNAL INVESTI-
 GATION  SHALL  PROVIDE FOR DISCIPLINARY MEASURES, INCLUDING TERMINATION,
 OF THE OFFICERS INVOLVED. PERSONS AFFECTED BY A  LAW  ENFORCEMENT  OFFI-
 CIAL'S USE OF LETHAL FORCE SHALL BE ENTITLED TO PARTICIPATE IN THE PROC-
 ESS; AND
   (C) A SEPARATE, IMPARTIAL, AND EXHAUSTIVE OFFICIAL INVESTIGATION WHERE
 THE  INDEPENDENT  AND  EXTERNAL OVERSIGHT BODY CONCLUDES THAT THE USE OF
 LETHAL FORCE WAS IMPROPER, BY THE  STATE  AND  HEADED  BY  THE  ATTORNEY
 GENERAL,  THAT  IS  INITIATED  IN  A PROMPT AND REASONABLE MANNER AND IS
 SUBJECT TO PUBLIC SCRUTINY;
   (v) guidelines regarding excessive use  of  force  including  duty  to
 intervene, reporting, and timely medical treatment for injured persons;
   (vi) standards for failure to adhere to use of force guidelines;
   (vii)  [training  mandates  on  use  of  force,  conflict  prevention,
 conflict resolution and negotiation, de-escalation techniques and strat-
 egies, including, but not limited to, interacting with persons  present-
 ing in an agitated condition; and
   (viii)  prohibited  uses of force] GUIDELINES REGARDING OFFICERS' DUTY
 TO INTERVENE WHEN ANOTHER OFFICER'S USE OF  FORCE  IS  EXCESSIVE,  ARBI-
 TRARY,  ABUSIVE,  AND OTHERWISE OUTSIDE THE CLEAR RESTRICTIONS CONTAINED
 IN THE USE OF FORCE POLICY ESTABLISHED PURSUANT TO THIS SUBDIVISION,  AS
 WELL  AS  A  REQUIREMENT  THAT THE OFFICER REPORT TO HIS OR HER SUPERIOR
 WHEN HE OR SHE HAS KNOWLEDGE OF ANOTHER OFFICER'S EXCESSIVE,  ARBITRARY,
 OR ABUSIVE USE OF FORCE;
   (VIII)  GUIDELINES REGARDING THE PROVISION OF TIMELY MEDICAL TREATMENT
 FOR ALL PERSONS INJURED BY POLICE USE OF FORCE;
   (IX) RESOURCES FOR OFFICERS INVOLVED IN USE OF FORCE INCIDENTS INCLUD-
 ING BUT NOT LIMITED TO STRESS COUNSELING;

 S. 5416                             3
 
   (X) A PROGRAM TO COLLECT, STORE, ANALYZE AND PUBLICIZE DATA ON  POLICE
 ACTIONS,  INCLUDING  ALL INCIDENTS INVOLVING POLICE OR PEACE OFFICER USE
 OF LETHAL FORCE WITHIN THE STATE;
   (XI)  MANDATED  TRAINING  ON  THE  USE  OF FORCE, CONFLICT PREVENTION,
 CONFLICT RESOLUTION AND NEGOTIATION  AND  DE-ESCALATION  TECHNIQUES  AND
 STRATEGIES,  INCLUDING,  BUT  NOT  LIMITED  TO, SPECIALIZED TRAINING FOR
 INTERACTING WITH PERSONS IN AN AGITATED CONDITION;
   (XII) UPSTREAM PREVENTATIVE MEASURES AIMED AT LIMITING POLICE  CONTACT
 IN  SITUATIONS MOST LIKELY TO EXPERIENCE EXCESSIVE FORCE. THESE MEASURES
 MAY INCLUDE BUT ARE NOT LIMITED TO REDUCED POLICE STOPS FOR  QUALITY  OF
 LIFE  CRIMES SUCH AS VANDALISM, DRUG ADDICTION, AND PUBLIC INTOXICATION;
 AND
   (XIII) A MECHANISM FOR REVIEW AND APPROVAL OF ANY  CHANGES  TO  POLICE
 USE OF FORCE POLICIES BY THE EXTERNAL OVERSIGHT BODY REFERRED TO IN ITEM
 (B)  OF CLAUSE (IV) OF THIS SUBPARAGRAPH IN CONSULTATION WITH MEMBERS OF
 THE COMMUNITY AND CIVIL SOCIETY.
   (3) The person in charge  of  every  local  police  department,  local
 correctional  facility,  each  county sheriff, the superintendent of the
 division of the state police, the  commissioner  of  the  department  of
 corrections and community supervision, and the person in charge of every
 agency  that employs a POLICE OR peace officer in this state shall adopt
 and implement a use of force policy in the agency of which they  are  in
 charge.  Such use of force policy shall be consistent with the model law
 enforcement use of force policy established pursuant  to  this  subdivi-
 sion,  except  that  such  departments, county sheriffs, superintendent,
 commissioner and agencies that employ a  POLICE  OR  peace  officer  may
 impose  further and additional restrictions on the use of force, in such
 use of force policy or otherwise.
   § 2. This act shall take effect immediately.