2005 Senate Bill text for SB0829

SENATE BILL 829

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Gerald P. Ortiz y Pino

AN ACT

RELATING TO LAW ENFORCEMENT; ENABLING LOCAL GOVERNMENTS TO ESTABLISH LAW ENFORCEMENT REVIEW BOARDS; ESTABLISHING MINIMUM CRITERIA FOR SELECTING A LAW ENFORCEMENT REVIEW BOARD; ENUMERATING POWERS AND DUTIES OF A LAW ENFORCEMENT REVIEW BOARD; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 5 of this act may be cited as the "Law Enforcement Review Board Act".

Section 2. [NEW MATERIAL] DEFINITIONS.--As used in the Law Enforcement Review Board Act:

A. "administrative review" means an investigation that includes interviews, and review of records and other documents;

B. "aggravated excessive force" means a degree of forcefulness that is not justified under the circumstances and that results in hospitalization of an arrestee;

C. "arrestee" means a person who files a complaint;

D. "chief supervisory official" means the senior position of a law enforcement agency, including a chief of police, a sheriff or the secretary of public safety;

E. "complaint" means a written allegation made on behalf of an arrestee against a law enforcement officer, whether filed with a review board or a law enforcement agency;

F. "cooperation" means responding to, appearing before and answering the administrative inquiry of a review board;

G. "dishonorable conduct" includes habitual or excessive use of intoxicants or drugs; swearing at an arrestee; fraud or misrepresentation; use of a false, fraudulent or deceptive statement in a document connected with an application for a law enforcement academy or law enforcement agency; extortion; failure to cooperate with a review board or to furnish the review board, its investigators or representatives with information requested by the board; sexual contact with a subject or an arrestee; and soliciting or receiving a bribe;

H. "excessive force" means a degree of forcefulness beyond the need and circumstances of a particular event or one that is not justified in light of all the circumstances whether or not the force results in death;

I. "law enforcement agency" means the department of public safety, a county sheriff's department and peace officers, a police department or any other law enforcement agency of the state or a political subdivision of the state, including one authorized by state law or by municipal or county ordinance; J. "law enforcement officer" means a present or former employee, person on contract with or volunteer for a law enforcement agency that is responsible for prevention and detection of crime and enforcement of the penal, traffic or highway laws of the state; and

K. "review board" means a board that is charged with overseeing the conduct of a law enforcement agency and its law enforcement officers on behalf of the community.

Section 3. [NEW MATERIAL] AUTHORITY TO ESTABLISH A REVIEW BOARD.--The state or a political subdivision of the state, including a home rule municipality, may establish a law enforcement review board comprised of elected or appointed representatives; provided that the review board is:

A. independent of a law enforcement budget and supervisory chain of command; and

B. comprised of residents of the political subdivision under which the review board is organized; provided that a member may not be:

(1) the spouse, parent or child of a law enforcement officer; or

(2) an employee or a former employee of a law enforcement agency not separated by a period of at least two years from employment with the law enforcement agency.

Section 4. [NEW MATERIAL] POWERS AND DUTIES OF A REVIEW BOARD.--

A. A review board shall:

(1) comply with the Inspection of Public Records Act;

(2) report its findings of a sustained complaint to the chief supervisory official of the relevant law enforcement agency and, in the case of a state police officer, to the public safety advisory commission;

(3) report to the district attorney or attorney general the finding of a sustained complaint that indicates a criminal offense may have occurred; and

(4) keep personnel records confidential to the extent required by law.

B. A review board may:

(1) develop and recommend law enforcement policy to preserve and promote the peace while respecting the civil rights of the general public;

(2) receive and administratively review a complaint filed against a law enforcement officer for unethical behavior, dishonorable conduct, a civil rights violation or excessive force;

(3) accept and investigate a complaint;

(4) conduct an administrative review that requires the cooperation and appearance of a law enforcement officer;

(5) make a finding that a complaint is unfounded or sustained; and

(6) determine disciplinary sanctions for a law enforcement officer against whom a complaint was sustained, including a recommendation for administrative reassignment, reprimand or a notation in the law enforcement officer's personnel file.

Section 5. [NEW MATERIAL] LAW ENFORCEMENT CONTRACTS AFFECTING THE FINDING OF A REVIEW BOARD.--A law enforcement agency or chief supervisory official shall not enter into a personnel contract that impairs the ability of a law enforcement agency or chief supervisory official to remove a law enforcement officer from public contact for a period of up to six months when a complaint is sustained by a review board.

Section 6. Section 3-13-2 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-12-2, as amended) is amended to read:

"3-13-2. POLICE OFFICERS.--

A. The police officer of a municipality shall:

(1) execute and return all writs and process as directed by the municipal judge of the municipality employing the police officer;

(2) execute and return all criminal process as directed by the municipal judge of any incorporated municipality in the state if the criminal process arises out of a charge of violation of a municipal ordinance prohibiting driving while under the influence of intoxicating liquor or drugs;

(3) serve criminal writs and process specified in Paragraphs (1) and (2) of this subsection in any part of the county wherein the municipality is situated; and

(4) within the municipality:

(a) suppress all riots, disturbances and breaches of the peace;

(b) apprehend all disorderly persons;

(d) apprehend any person in the act of violating the laws of the state or the ordinances of the municipality and bring him before competent authority for examination and trial.

B. A police officer shall cooperate with a law enforcement review board.

[B.] C. In the discharge of his proper duties, a police officer shall have the same powers and be subject to the same responsibilities as sheriffs in similar cases."

Section 7. Section 29-1-9 NMSA 1978 (being Laws 1891, Chapter 60, Section 1, as amended) is amended to read:

"29-1-9. APPOINTMENT OF PEACE OFFICERS--CITIZENSHIP--CERTIFICATE OF APPOINTMENT--EXCEPTIONS.--No sheriff of a county, mayor of a city or other person authorized by law to appoint special deputy sheriffs [special constables], marshals, policemen or other peace officers in the state [of New Mexico] to preserve the public peace and to prevent and quell public disturbances shall appoint as [such] a special deputy sheriff [special constable], marshal, policeman or other peace officer any person who [shall] is not [be] a citizen of the state [of New Mexico], and no person shall assume or exercise the functions, powers, duties and privileges incident and belonging to the office of special deputy sheriff [special constable], marshal or policeman or other peace officer without first having received his appointment in writing from the lawfully constituted authorities of the state [of New Mexico]; provided that nothing in this section shall apply to lawfully appointed United States marshals or to deputies of [any such] those marshals or to railroad peace officers appointed pursuant to Section 63-2-18 NMSA 1978 in the performance of their duties as peace officers. A law enforcement review board's finding that a complaint has been sustained against a law enforcement officer shall be cause to prohibit appointment of the law enforcement officer under this section for a period of up to six months.

This section shall not apply in times of riot or unusual disturbance and when so declared by the public proclamation of the governor of the state."

Section 8. Section 29-2-6 NMSA 1978 (being Laws 1941, Chapter 147, Section 6, as amended) is amended to read:

"29-2-6. QUALIFICATIONS OF MEMBERS.--

A. Members of the New Mexico state police, except the chief, shall:

(1) at the time of their appointment, be citizens of the United States;

(2) at the time of their appointment, have reached twenty-one years of age;

(3) at the time of their appointment:

(a) have completed not less than sixty hours of college credit; or

(b) have completed not less than thirty hours of college credit and, no later than two years following appointment, have completed not less than an additional thirty hours of college credit;

(4) be of good moral character and not have been convicted of a felony or infamous crime in the courts of this state or other state or any country or in the federal courts or have a finding of a sustained complaint from a law enforcement review board within the past six months; and

(5) pass a physical examination the New Mexico state police may require.

B. A person shall not be commissioned a member of the New Mexico state police who is related by blood or marriage within the fourth degree to a member of the public safety advisory commission."

Section 9. Section 29-2-7 NMSA 1978 (being Laws 1941, Chapter 147, Section 7, as amended) is amended to read:

"29-2-7. COMMISSIONED OFFICERS--APPLICATION--PROCEDURE.--The New Mexico state police shall cause all applicants for the position of commissioned officer to submit a written detailed application on [such] forms as the [board] secretary shall prescribe, and the [board] secretary shall cause an investigation to be made of all applicants, subsequent to their taking the examination [hereinafter] referred to in Section 29-2-8 NMSA 1978, for the purpose of determining the moral character, general reputation and fitness of any applicant. [and. Any such] An applicant who is found unfit as a result of [such] the investigation shall be disqualified for employment. An applicant against whom a law enforcement review board has sustained a complaint shall be unfit for a period of six months. The [board] secretary shall by rule prescribe the physical qualifications of applicants and shall require each applicant to submit to a physical examination by such doctors as the [board] secretary shall designate. [and. Any] An applicant who does not meet the physical requirements prescribed by the [board] secretary shall be disqualified for employment. Inasmuch as laws have been enacted providing for retirement, disability and life insurance funds for members of the New Mexico state police, it is the intention of the legislature that no applicants will be appointed who are in such physical condition that the cost of such protection will thereby be increased."

Section 10. Section 29-2-11 NMSA 1978 (being Laws 1941, Chapter 147, Section 11, as amended) is amended to read:

"29-2-11. DISCIPLINARY PROCEEDINGS--APPEAL.--

A. No officer of the New Mexico state police holding a permanent commission shall be removed from office, demoted or suspended except for incompetence, neglect of duty, violation of a published rule of conduct, malfeasance in office or conduct unbecoming an officer, except as provided in this section.

B. The secretary may suspend an officer for disciplinary reasons [for not more than thirty days] in accordance with New Mexico state police rules. Any officer holding a permanent commission who is suspended by the secretary has the right to have the suspension reviewed by the commission [but without further review or appeal].

C. In the event the officer is to be removed from office, demoted or suspended for a period of more than thirty days, specific written charges shall be filed with the commission. Timely and adequate notice of the charges to the person charged shall be provided and a prompt hearing on the charges shall be held by the commission. The person charged has the right to be represented by counsel of [his own] the person's choice and at [his] the person's own expense at the hearings. A complete record of the hearing shall be made and, upon request, a copy of it shall be furnished to the person charged. The person may require that the hearing be public.

D. In the event the commission finds that the person charged shall be removed, demoted or suspended for a period in excess of thirty days, the person may appeal from the decision of the commission to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

E. The commission shall consider a law enforcement review board's finding of a sustained complaint in issuing discipline."

Section 11. Section 29-7-6 NMSA 1978 (being Laws 1993, Chapter 255, Section 6) is amended to read:

"29-7-6. QUALIFICATIONS FOR CERTIFICATION.--

A. An applicant for certification shall provide evidence satisfactory to the board that he:

(1) is a citizen of the United States and has reached the age of majority;

(2) holds a high school diploma or the equivalent;

(3) holds a valid driver's license;

(4) has not been convicted of or pled guilty to or entered a plea of nolo contendere to any felony charge or, within the three-year period immediately preceding his application, to any violation of any federal or state law or local ordinance relating to aggravated assault, theft, driving while intoxicated, controlled substances or other crime involving moral turpitude and has not been released or discharged under dishonorable conditions from any of the armed forces of the United States;

(5) has not had a complaint for a civil rights violation or use of excessive force sustained against him by a law enforcement review board in the past two years;

[(5)] (6) after examination by a licensed physician, is free of any physical condition that might adversely affect his performance as a police officer or prohibit him from successfully completing a prescribed basic law enforcement training required by the Law Enforcement Training Act;

[(6)] (7) after examination by a certified psychologist, is free of any emotional or mental condition that might adversely affect his performance as a police officer or prohibit him from successfully completing a prescribed basic law enforcement training required by the Law Enforcement Training Act;

[(7)] (8) is of good moral character;

[(8)] (9) has met any other requirements for certification prescribed by the board pursuant to regulations adopted by the board; and

[(9)] (10) has previously been awarded a certificate of completion by the director attesting to the applicant's completion of an approved law enforcement training program.

B. A person employed as a police officer by any law enforcement agency in this state shall forfeit his position unless, no later than twelve months after beginning his employment as a police officer, the person satisfies the qualifications for certification set forth in Subsection A of this section and is awarded a certificate attesting to that fact."

Section 12. Section 29-7-10 NMSA 1978 (being Laws 1971, Chapter 247, Section 4, as amended by Laws 1981, Chapter 107, Section 1 and also by Laws 1981, Chapter 114, Section 10) is amended to read:

"29-7-10. CERTIFICATION BY WAIVER.--

A. The director shall, with the approval of the board, waive the basic law enforcement training program and certify applicants who are employed as full-time police officers and who furnish evidence of satisfactory completion of a basic law enforcement training program which is comparable to or exceeds the standards of the programs of the academy and who have no finding of a sustained complaint by a law enforcement review board in the past six months.

B. All individuals allowed a waiver under this section [must] shall meet the requirements set out in the Law Enforcement Training Act, and this section shall not be construed to exempt them from [such] those requirements in any manner."

Section 13. Section 29-7-13 NMSA 1978 (being Laws 1993, Chapter 255, Section 10) is amended to read:

"29-7-13. REFUSAL, SUSPENSION OR REVOCATION OF CERTIFICATION.--

A. After consultation with the employing agency, the board may refuse to issue or may suspend or revoke a police officer's certification when the board determines that a person has:

(1) failed to satisfy the qualifications for certification, set forth in Section 29-7-6 NMSA 1978;

(2) committed acts that constitute dishonesty or fraud;

(3) been convicted of, pled guilty to or entered a plea of no contest to:

(a) any felony charge; or

(b) any violation of federal or state law or a local ordinance relating to aggravated assault, theft, driving while under the influence of intoxicating liquor or drugs, controlled substances or any law or ordinance involving moral turpitude;

(4) knowingly made any false statement in his application for certification; or

(5) been found by a law enforcement review board to have a sustained complaint of a civil rights violation or use of excessive force.

B. The board shall develop, adopt and promulgate administrative procedures for suspension or revocation of a police officer's certification that include notice and an opportunity for the affected police officer to be heard, as well as procedures for review of the board's decision."

Section 14. Section 33-1-11 NMSA 1978 (being Laws 1981, Chapter 132, Section 2, as amended) is amended to read:

"33-1-11. CORRECTIONAL OFFICER QUALIFICATIONS.--Members of the corrections department correctional officer force, excluding correctional specialists, shall:

A. at the time of their appointment, be citizens of the United States;

B. at the time of their appointment, have reached age of majority;

C. have at least a high school education or its equivalent;

D. be of good moral character and not have been convicted of a felony or any infamous crime in the courts of this or any other state or in the federal courts or, within the previous six months, have a sustained finding of a complaint to a law enforcement review board; and

E. successfully pass any physical and aptitude examination the department may require."

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