Senate Bill S9588

                                 
BILL NUMBER: S9588

SPONSOR: MAYER
 
TITLE OF BILL:

An act to amend the executive law, in relation to requiring training for
police officers on discharging a firearm at a moving vehicle

 
PURPOSE OF BILL:

This bill requires that the model law enforcement use of force policy
promulgated by the Municipal Police Training Council of the New York
State Division of Criminal Justice Services include best practices,
policies, and guidelines regarding the discharge of a firearm at a
moving vehicle. It also requires that the Council develop written poli-
cies and procedures regarding police discharge of a firearm at a moving
vehicle and that the Council recommend rules and regulations regarding
implementing ongoing training and periodic retraining in this area for
all current and new police officers.

 
SUMMARY OF SPECIFIC PROVISIONS:

              

Section 1 amends subparagraph 2 of subdivision 4 of section 840 of the
Executive Law to require that the model law enforcement use of force
policy include best practices, policies, and guidelines regarding the
discharge of a firearm at a moving vehicle.

Section 2 amends section 840 of the Executive Law by adding a new subdi-
vision 8 which requires that the Municipal Police Training Council of
the Division of Criminal Justice Services develop, maintain, and dissem-
inate written policies and procedures regarding police discharge of a
firearm at a moving vehicle and recommend rules and regulations regard-
ing implementing ongoing training and periodic retraining for all
current and new police officers on these policies and procedures.

Section 3 establishes the effective date.

 
JUSTIFICATION:

The current Model Policy on the Use of Force promulgated by the Munici-
pal Police Training Council of the New York State Division of Criminal
Justice Services states that deadly physical force may be used by an
officer to protect themselves or another person from what the officer
reasonably believes is an imminent threat of serious physical injury or
death. (1) Under the model policy, officers involved in use of force
incidents where a firearm is discharged at a subject are required to
report it as soon as possible and to file a use of force report.

There is no specific mention in the Council's model policy of discharge
of a firearm at a moving vehicle.

In contrast, the U.S. Department of Justice Policy on Use of Force sets
out explicit guidelines regarding the discharge of a firearm at a moving
vehicle:

Firearms may not be discharged solely to disable moving vehicles.
Specifically, firearms may not be discharged at a moving vehicle unless:
(1) a person in the vehicle is threatening the officer or another person
with deadly force by means other than the vehicle; or (2) the vehicle is
operated in a manner that threatens to cause death or serious physical
injury to the officer or others, and no other objectively reasonable
means of defense appear to exist, which includes moving out of the path
of the vehicle. Firearms may not be discharged from a moving vehicle
exempt in exigent circumstances. In these situations, an officer must
have an articulable reason for this use of deadly force. (2)

Similarly, the New York City Police Department's Patrol Guide states:

Members of the service SHALL NOT:... Discharge their firearms at or from
a moving vehicle unless deadly physical force is being used against the
member of the service or another person present, by means other than a
moving vehicle...

NOTE: Drawing a firearm prematurely or unnecessarily limits options in
controlling a situation and may result in an unwarranted or accidental
discharge of the firearm... Where only a vehicle is used as deadly phys-
ical force against a member of the service, members should safely
attempt to move out of the path of an approaching vehicle. (3)

On October 17, 2010, college student Danroy "DJ" Henry was shot and
killed by a Pleasantville police officer as he drove through a parking
lot after Pace University's homecoming football game. (4)

In July of 2023, the Westchester County District Attorney's office
released a report on the police shooting of Danroy Henry and the circum-
stances surrounding his death. (5)

The report states:

 
THE DISTRICT ATTORNEY AND HER EXECUTIVE TEAM are of the opinion that
DJ's death may have been avoided if better protocols had been in place
and the officers involved had received more specific training, all of
which could have resulted in the officer addressing the situation
through techniques other than stepping in front of a moving vehicle and
drawing a firearm.

Among the report's recommendations:

All Westchester County police departments should have consistent,
updated, and enhanced training and enforcement protocols about how to
maximize passenger, driver and officer safety when dealing with situ-
ations involving a moving vehicle. Training should focus on minimizing
the risk of harm to both police officers and civilians. These real-life
scenarios should be practiced with departments across the County.  
THE
DISTRICT ATTORNEY is calling on state and county lawmakers to propose
legislation ("DJ's Law") requiring specific training for law enforcement
about best practices in different moving vehicle situations.

This is not just a Westchester problem. Similar incidents have happened
across the country. A 2021 New York Times investigation found that 400
deaths of unarmed individuals resulted from car stops over the course of
five years. (8)

As noted above, both the U.S. Department of Justice and the New York
City Police  Department have specific use of force policies addressing
the discharge of firearms at moving vehicles.

This bill would ensure that departments across New York State have
consistent policies and that officers are fully and consistently trained
on how to handle instances involving moving vehicles in ways that
protect their safety, the safety of fellow officers, and the safety of
drivers, passengers, and bystanders in circumstances such as the one
that resulted in the death of Danroy "DJ" Henry.

 
PRIOR LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS: :

To be determined

 
EFFECTIVE DATE: :
This act shall take effect immediately.
(1) Use of Force Model Policy, NYS Municipal Police Training Council,
NYS Division of Criminal Justice Services (September 2020), at 4, avail-
able at
https:.//www.criminal justice.ny.gov/crimnet;ojsa/crimereporting/MPTC
-Model-Policy-Use-of-Force-2020.pdf.  See also NY Penal Law S 35.30.
(2) U.S. Department of Justice, Department of Justice policy on the Use
of Force, Justice Manual, available at
https://www.justice.gov/jm/16000--department-Justice-policy-use-force
(3) NYPD Patrol Guide, Force Guidelines, Procedure No. 221-01 (effective
9/20/22), available at
https://www.acv/assets/ncads/pdf/publicinformation/public-pguide4.pdf,
at https://www.nyc.gov/site/nypd/about/about-nypd/manual.page, visited
on May 15, 2024.
(4) Nancy Cutler, Jonathan Bandier, Their loved ones were killed over a
decade ago by police. Is DA's new report justice?, lohud.com, available
at https://www.lohud.com/story/news/crime/2023/07/27/black-men-killed-by
white-police-kennwth-chamberlain-dj-henry-westchester-county-ny/
70470811007/
(5) Conclusion of the Review into the Police-involved Shooting Death of
Danroy "DJ" Henry Jr.,
https://www.westchesterda.net/images/stories/pdfs/2023/WCDAO_
HENRY_REPORT_72623.pdf at https://westchesterda.net/da-annual-reports,
visted on May 15,2024.  (6) Id at 3.
(7) Id at 4.
(8) Kim Barker, et al., How Police Justify Killing Drivers: The Vehicle
Was a Weapon, New York Times, available at
https://www.nytimes.com/2021/11/06/us/p01ice-traffic-stops-shooting.html