S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1889
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2023
                                ___________
 
 Introduced  by  Sen. SANDERS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Finance
 
 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
   (VI)  ENGAGING IN CONDUCT WHICH RESULTS IN THE DEATH OR SERIOUS BODILY
 INJURY OF ANOTHER PERSON.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01555-01-3
 S. 1889                             2
              

 
   (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
 WAS ON OR OFF-DUTY. FAILURE TO REPORT SHALL BE GROUNDS  FOR  DISCIPLINE,
 INCLUDING TERMINATION.
 S. 1889                             3
 
   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  amended  by
 chapter 522 of the laws of 2021, is amended to read as follows:
   2.  Prohibitions.  An  employer  shall not take any retaliatory action
 against an employee, whether or not within the scope of  the  employee's
 job duties, because such employee does any of the following:
   (a) discloses, or threatens to disclose to a supervisor or to a public
 body  an  activity, policy or practice of the employer that the employee
 reasonably believes is in violation of law, rule or regulation  or  that
 the employee reasonably believes poses a substantial and specific danger
 to the public health or safety;
   (b)  provides  information  to,  or  testifies before, any public body
 conducting an investigation, hearing or inquiry into any such  activity,
 policy or practice by such employer; [or]
   (c) objects to, or refuses to participate in any such activity, policy
 or practice[.]; 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.