S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5658
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 20, 2023
                                ___________
 
 Introduced  by  M.  of  A.  SIMONE,  PEOPLES-STOKES, VANEL, AUBRY, COOK,
   RIVERA, SIMON -- read once and referred to the Committee on Codes
 
 AN ACT to amend the penal law, in relation to the use of injurious phys-
   ical force by public servants
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 10.00 of the penal law is amended by adding a new
 subdivision 11-a to read as follows:
   11-A. "INJURIOUS PHYSICAL FORCE" MEANS PHYSICAL FORCE WHICH, UNDER THE
 CIRCUMSTANCES IN WHICH IT IS USED, IS READILY CAPABLE OF  CAUSING  PHYS-
 ICAL  INJURY,  INCLUDING  BUT  NOT  LIMITED  TO  THE  USE OF A HAZARDOUS
 SUBSTANCE AS DEFINED IN SECTION 240.00 OF  THIS  CHAPTER  OR  A  NOXIOUS
 MATERIAL AS DEFINED IN SECTION 270.05 OF THIS CHAPTER.
   §  2. Section 35.05 of the penal law, the opening paragraph and subdi-
 vision 1 as amended by chapter 73 of the laws of  1968,  is  amended  to
 read as follows:
 § 35.05 Justification; generally.
   Unless  otherwise  limited  by  the ensuing provisions of this article
 defining justifiable use of physical force, conduct which  would  other-
 wise constitute an offense is justifiable and not criminal when:
   1.  Such  conduct  is  required  or authorized by law or by a judicial
 decree, or is performed by a public servant in the  reasonable  exercise
 of his OR HER official powers, duties or functions; PROVIDED THAT:
   (A)  INJURIOUS PHYSICAL FORCE SHALL NOT BE USED UNDER THIS SUBDIVISION
 UNLESS THE USE OF INJURIOUS PHYSICAL FORCE IS REASONABLY  NECESSARY  (I)
 TO  DEFEND  THE  PUBLIC  SERVANT  OR ANOTHER PERSON FROM WHAT THE PUBLIC
 SERVANT REASONABLY BELIEVES TO BE THE USE OR IMMINENT USE  OF  INJURIOUS
 PHYSICAL  FORCE OR (II) TO ACCOMPLISH THE PARTICULAR REASONABLE EXERCISE
 OF OFFICIAL POWERS, DUTIES OR FUNCTIONS; AND

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07937-01-3
 A. 5658                             2
 
              

   (B) THE USE OF PHYSICAL FORCE UNDER THIS SUBDIVISION SHALL BE  LIMITED
 TO  THAT  WHICH  IS  REASONABLY  NECESSARY  TO ACCOMPLISH THE PARTICULAR
 REASONABLE EXERCISE OF OFFICIAL POWERS, DUTIES OR FUNCTION; or
   2. Such conduct is necessary as an emergency measure to avoid an immi-
 nent  public  or  private  injury which is about to occur by reason of a
 situation occasioned or developed through no fault  of  the  actor,  and
 which is of such gravity that, according to ordinary standards of intel-
 ligence  and  morality,  the  desirability  and urgency of avoiding such
 injury clearly outweigh the desirability of avoiding the  injury  sought
 to  be  prevented  by  the  statute defining the offense in issue.   The
 necessity and justifiability of such conduct may not rest upon consider-
 ations pertaining only to the morality and advisability of the  statute,
 either  in its general application or with respect to its application to
 a particular class of cases arising thereunder. Whenever evidence relat-
 ing to the defense of justification under this subdivision is offered by
 the defendant, the court shall rule as  a  matter  of  law  whether  the
 claimed  facts  and  circumstances  would,  if established, constitute a
 defense.
   § 3. The penal law is amended by adding a new section 35.35 to read as
 follows:
 § 35.35 JUSTIFICATION; USE OF PHYSICAL FORCE; STANDARDS.
   THE USE OF PHYSICAL FORCE BY A PUBLIC SERVANT, AND  THE  JUSTIFICATION
 OF  SUCH  USE  UNDER THIS ARTICLE, SHALL BE SUBJECT TO REGULATIONS WHICH
 SHALL BE MADE BY THE COMMISSIONER OF THE DIVISION  OF  CRIMINAL  JUSTICE
 SERVICES,  IN  CONSULTATION  WITH THE COMMISSIONER OF HEALTH. SUCH REGU-
 LATIONS MAY ALSO REGULATE OR SET REQUIREMENTS OR LIMITATIONS RELATING TO
 DEVICES OR SUBSTANCES USED IN THE EXERCISE OF PHYSICAL FORCE.
   § 4. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.