S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1619--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 14, 2021
                                ___________
 
 Introduced  by  Sen. SANDERS -- read twice and ordered printed, and when
   printed to be committed to  the  Committee  on  Finance  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT  to  amend  the  executive law and the labor law, in relation to
   enacting "Cariol's Law"

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  This act shall be known and may be cited as "Cariol's law"
 or "duty to intervene".
   §  2.  The  executive  law is amended by adding a new section 839-a to
 read as follows:
   § 839-A. EXCESSIVE USE OF FORCE; DUTY TO  INTERVENE.  1.  DEFINITIONS.
 FOR  THE  PURPOSES  OF  THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
 FOLLOWING MEANINGS:
   (A) "POLICE OFFICER" SHALL HAVE THE SAME MEANING AS  PROVIDED  FOR  IN
 SUBDIVISION THIRTY-FOUR OF SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW;
   (B) "USE OF FORCE" SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO:
   (I) BRANDISHING, POINTING, USING OR DISCHARGING A FIREARM AT OR IN THE
 DIRECTION OF ANOTHER PERSON;
   (II)  USING  A CHOKEHOLD OR SIMILAR RESTRAINT THAT APPLIES PRESSURE TO
 THE THROAT OR WINDPIPE OF A PERSON IN A MANNER THAT MAY HINDER BREATHING
 OR REDUCE INTAKE OF AIR;
   (III) DISPLAYING, USING OR DEPLOYING A CHEMICAL AGENT, INCLUDING,  BUT
 NOT LIMITED TO, OLEORESIN CAPSICUM, PEPPER SPRAY OR TEAR GAS;
   (IV)  BRANDISHING, USING OR DEPLOYING AN IMPACT WEAPON, INCLUDING, BUT
 NOT LIMITED TO, A BATON OR BILLY CLUB;
   (V) BRANDISHING, USING OR  DEPLOYING  AN  ELECTRONIC  CONTROL  WEAPON,
 INCLUDING,  BUT  NOT  LIMITED  TO, AN ELECTRONIC STUN GUN, FLASH BOMB OR
 LONG-RANGE ACOUSTIC DEVICE; OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05960-02-1
              

 S. 1619--A                          2
 
   (VI) ENGAGING IN CONDUCT WHICH RESULTS IN THE DEATH OR SERIOUS  BODILY
 INJURY OF ANOTHER PERSON.
   (C)  "OBJECTIVELY  REASONABLE"  SHALL  MEAN A STANDARD USED TO JUDGE A
 POLICE OFFICER'S USE OF FORCE WHICH ARE REASONABLE BASED ON THE TOTALITY
 OF THE CIRCUMSTANCES KNOWN TO SUCH OFFICER AT THE TIME OF  SUCH  USE  OF
 FORCE;
   (D)  "PHYSICAL  INJURY" SHALL HAVE THE SAME MEANING AS PROVIDED FOR IN
 SUBDIVISION NINE OF SECTION 10.00 OF THE PENAL LAW; AND
   (E) "SERIOUS PHYSICAL INJURY" SHALL HAVE THE SAME MEANING AS  PROVIDED
 FOR IN SUBDIVISION TEN OF SECTION 10.00 OF THE PENAL LAW.
   2.  DUTY  TO  INTERVENE.  AN ON-DUTY POLICE OFFICER WHO IS PRESENT AND
 OBSERVES ANOTHER POLICE OFFICER USING PHYSICAL  FORCE  THAT  HE  OR  SHE
 REASONABLY  BELIEVES  TO  BE  CLEARLY  EXCESSIVE OR BEYOND THAT WHICH IS
 OBJECTIVELY REASONABLE UNDER THE CIRCUMSTANCES, SHALL BE REQUIRED,  WHEN
 SUCH  OFFICER  HAS A REALISTIC OPPORTUNITY TO DO SO SAFELY, TO INTERVENE
 TO PREVENT THE USE OF SUCH EXCESSIVE FORCE.
   3. FAILURE TO INTERVENE. (A) A POLICE OFFICER WHO FAILS  TO  INTERVENE
 WHEN APPROPRIATE MAY:
   (I)  BE HELD CRIMINALLY LIABLE FOR ANY OFFENSE UNDER THE PENAL LAW FOR
 WHICH FAILURE TO INTERVENE SATISFIES EVERY ELEMENT OF SUCH  OFFENSE,  OR
 FOR ANY OFFENSE RESULTING FROM SUCH OFFICER'S FAILURE TO INTERVENE;
   (II) BE SUBJECT TO TERMINATION BY HIS OR HER EMPLOYER IF SUCH OFFICER:
   (1) HAD A REALISTIC OPPORTUNITY TO INTERVENE SAFELY;
   (2)  ACTED  WHILE PURPORTING OR PRETENDING TO ACT WITHIN THE SCOPE AND
 PERFORMANCE OF HIS OR HER OFFICIAL DUTIES; AND
   (3) DEPRIVED  AN  INDIVIDUAL  OF  RIGHTS,  PRIVILEGES,  OR  IMMUNITIES
 SECURED BY THE CONSTITUTION OR THE LAWS OF THE UNITED STATES.
   (III)  BE HELD CIVILLY LIABLE TO ANY AGGRIEVED PARTY WHEN SUCH OFFICER
 OBSERVES OR HAS REASON TO KNOW THAT:
   (1) EXCESSIVE FORCE IS BEING USED;
   (2) AN INDIVIDUAL HAS BEEN UNJUSTIFIABLY ARRESTED; OR
   (3) ANY CONSTITUTIONAL VIOLATION HAS BEEN COMMITTED BY A FELLOW  OFFI-
 CER.
   (B)  WHEN  A  POLICE  OFFICER  FAILS TO INTERVENE IN AN INCIDENT WHICH
 RESULTS IN DEATH OR SERIOUS PHYSICAL  INJURY,  SUCH  INCIDENT  SHALL  BE
 REFERRED TO THE DISTRICT ATTORNEY.
   (C)  THE  COMMISSIONER SHALL AUTHORIZE AN INVESTIGATION OF ANY ALLEGA-
 TIONS OF A POLICE OFFICER'S FAILURE TO INTERVENE. SUCH  OFFICER  MAY  BE
 PLACED  ON ADMINISTRATIVE LEAVE DURING THE PERIOD OF SUCH INVESTIGATION.
 ANY FINAL DISCIPLINARY ACTION SHALL BE SUBJECT TO  ARBITRATION  PURSUANT
 TO ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES.
   (D)  POLICE  OFFICERS WHO FALSELY REPORT INCIDENTS OF INAPPROPRIATE OR
 EXCESSIVE USE OF FORCE BY A FELLOW POLICE  OFFICER  MAY  BE  SUBJECT  TO
 CRIMINAL LIABILITY PURSUANT TO SECTION 240.60 OF THE PENAL LAW.
   4.  LIABILITY.  NOTWITHSTANDING  ANY PROVISION OF LAW TO THE CONTRARY,
 ANY POLICE OFFICER FOUND TO BE CIVILLY LIABLE FOR EXCESSIVE FORCE  SHALL
 BE  LIABLE FOR ANY JUDGMENTS MADE AGAINST THE MUNICIPALITY, STATE AGENCY
 OR PUBLIC AUTHORITY IF SUCH JUDGMENT IS DIRECTLY CONNECTED TO SUCH OFFI-
 CER'S USE OF EXCESSIVE FORCE.
   5. REPORTING. UPON A POLICE OFFICER'S OBSERVATION OF THE USE OF  PHYS-
 ICAL  FORCE  BY ANOTHER POLICE OFFICER WHO HE OR SHE REASONABLY BELIEVES
 TO BE CLEARLY EXCESSIVE OR BEYOND THAT WHICH IS  OBJECTIVELY  REASONABLE
 UNDER THE CIRCUMSTANCES, SUCH OFFICER SHALL FILE A FORMAL COMPLAINT WITH
 THE  CHIEF  OF  HIS  OR HER POLICE DEPARTMENT, THE COUNTY SHERIFF OR THE
 SUPERINTENDENT OF THE STATE POLICE. REPORTING REQUIREMENTS  SHALL  APPLY
 WHETHER  THE  USE OF PHYSICAL FORCE OCCURRED WHILE THE OFFENDING OFFICER

 S. 1619--A                          3
 
 WAS ON OR OFF-DUTY. FAILURE TO REPORT SHALL BE GROUNDS  FOR  DISCIPLINE,
 INCLUDING TERMINATION.
   6. RETROACTIVE PROTECTION FOR INTERVENING OFFICERS. ANY POLICE OFFICER
 TERMINATED  FOR  REPORTING  THE  USE OF PHYSICAL FORCE BY ANOTHER POLICE
 OFFICER WHO HE OR SHE REASONABLY BELIEVES TO  BE  CLEARLY  EXCESSIVE  OR
 BEYOND  THAT  WHICH  IS  OBJECTIVELY REASONABLE UNDER THE CIRCUMSTANCES,
 WITHIN THE TWENTY YEAR PERIOD  PRIOR  TO  THE  EFFECTIVE  DATE  OF  THIS
 SECTION, MAY HAVE SUCH TERMINATION REVIEWED.
   §  3. Subdivision 2 of section 740 of the labor law, as added by chap-
 ter 660 of the laws of 1984, paragraph (a) as amended by chapter 442  of
 the laws of 2006, is amended to read as follows:
   2.  Prohibitions. An employer shall not take any retaliatory personnel
 action against an employee because such employee does any of the follow-
 ing:
   (a) discloses, or threatens to disclose to a supervisor or to a public
 body an activity,  policy  or  practice  of  the  employer  that  is  in
 violation  of  law,  rule  or  regulation  which  violation  creates and
 presents a substantial and specific danger to the public health or safe-
 ty, or which constitutes health care fraud;
   (b) provides information to, or  testifies  before,  any  public  body
 conducting  an investigation, hearing or inquiry into any such violation
 of a law, rule or regulation by such employer; [or]
   (c) objects to, or refuses to participate in any such activity, policy
 or practice in violation of a law, rule or regulation[.]; OR
   (D) IF SUCH EMPLOYEE IS A POLICE OFFICER, AS SUCH TERM IS  DEFINED  IN
 SUBDIVISION  THIRTY-FOUR  OF SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW,
 OBSERVES ANY POLICE OFFICER USING PHYSICAL FORCE AGAINST  AN  INDIVIDUAL
 THAT  HE  OR  SHE  REASONABLY BELIEVES TO BE CLEARLY EXCESSIVE OR BEYOND
 THAT WHICH IS OBJECTIVELY REASONABLE UNDER THE  CIRCUMSTANCES  AND  SUCH
 POLICE OFFICER INTERVENES.
   § 4. This act shall take effect immediately.