HOUSE CONSUMER AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
HOUSE BILL 254
55th legislature - STATE OF NEW MEXICO - first session, 2021
AN ACT
RELATING TO CRIMINAL PROCEDURE; PROVIDING A REPORTING MECHANISM AND AN ASSIGNMENT OF A PROSECUTOR FOLLOWING THE USE OF DEADLY FORCE BY A PEACE OFFICER RESULTING IN GREAT BODILY HARM OR DEATH; PROVIDING FOR AN INDEPENDENT INVESTIGATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of Chapter 31 NMSA 1978 is
enacted to read:
"[NEW MATERIAL] USE OF DEADLY FORCE BY A PEACE OFFICER RESULTING IN GREAT BODILY HARM OR DEATH--REQUIRED NOTIFICATION--EVALUATION BY A RELEVANT PROSECUTING AUTHORITY--REQUIRING A REPORT FOR DECLINATION TO PROSECUTE--PROVIDING JURISDICTION.--
A. The procedures provided in this section shall
apply when a peace officer uses deadly force against a person in the course of the peace officer's duties that results in great bodily harm or death and any other in-custody death.
B. Within twenty-four hours of a person suffering great bodily harm or death as a result of a peace officer's actions, the sheriff or the chief of police of the jurisdiction in which the great bodily harm or death occurred shall report the great bodily harm or death in writing to the district attorney of the judicial district in which the great bodily harm or death occurred. The sheriff or chief of police shall report all instances of suspected great bodily harm to the appropriate district attorney, even if a more thorough assessment of great bodily harm will be undertaken at a later date.
C. Within twenty-four hours of receiving written notice pursuant to Subsection B of this section, the district attorney shall report the incident in writing to the governor and the attorney general. The governor shall keep a log of reported incidents, which shall be considered public records pursuant to the Inspection of Public Records Act. The log shall, at a minimum, include the date of occurrence, the date of the report made to the district attorney, the location and a description of the incident.
D. The relevant prosecuting authority shall represent the state at a probable cause hearing at which it shall present evidence of the peace officer's use of excessive or deadly force and evidence of criminal offenses committed by the officer, including but not limited to violations of:
(1) Section 30-2-1 NMSA 1978;
(2) Section 30-2-3 NMSA 1978;
(3) Section 30-3-2 NMSA 1978;
(4) Section 30-3-3 NMSA 1978; and
(5) Section 30-3-5 NMSA 1978.
Nothing in this subsection shall be construed to limit prosecutorial discretion of the relevant prosecuting authority.
E. The department of public safety shall be the default primary investigative agency charged with investigating instances of peace officers using deadly force resulting in great bodily harm or death and any other in-custody death and shall conduct an investigation as soon as practicable. This shall not preclude the department of public safety from requesting assistance with the investigation from other agencies as part of a task force agreement. If a task force is utilized, the department of public safety shall remain the primary agency, and the agency involved in the use of force may assist but shall not have any type of lead role in the investigation. When a use of deadly force resulting in great bodily harm or death is committed by a member of the department of public safety, the lead role in the investigation shall be maintained by the department of public safety, but members of an outside agency shall be required to assist. A minimum of two agents from the attorney general's office or another competent investigative agency shall work the investigation in conjunction with the department of public safety. All law enforcement agencies shall fully cooperate with and promptly respond to requests for information from the relevant prosecuting authority and the law enforcement agency or independent investigator charged with authority over the investigation.
F. The relevant prosecuting authority shall be responsible for determining whether the facts and applicable law allow for prosecution of the peace officer for criminal liability resulting from the alleged use of deadly force resulting in great bodily harm or death and any other in-custody death. The relevant prosecuting authority may also assist a concurrent investigative grand jury to subpoena witnesses, records and physical items related to the investigation as otherwise permitted by law. Any costs unexpended by a county or municipal law enforcement agency as a result of the department of public safety's conducting of the investigation shall be reimbursed to the department, and any costs unexpended by the district attorney's office in the judicial district where the conduct is alleged to have occurred as a result of the attorney general's office conducting the prosecution shall be reimbursed to the attorney general's office.
G. During an investigation, the relevant prosecuting authority shall provide quarterly reports to the attorney general, to the district attorney in whose judicial district the offense is alleged to have occurred and to the governor, providing any material updates that do not impair the investigation. These quarterly reports shall be considered public records pursuant to the Inspection of Public Records Act. Any declination of prosecution by the relevant prosecuting authority shall be documented in a detailed report citing all relevant evidence to the attorney general, to the district attorney in whose judicial district the offense is alleged to have occurred and to the governor and shall be considered a public record pursuant to the Inspection of Public Records Act. Nothing in this subsection shall be construed to allow the disclosure of information that is otherwise excepted from disclosure by the Inspection of Public Records Act.
H. When a district attorney declines to exercise original prosecutorial jurisdiction pursuant to Section 36-1-18 NMSA 1978, the attorney general shall have jurisdiction to prosecute unlawful uses of deadly force resulting in great bodily harm or death and in-custody deaths and to prosecute any unlawful use of deadly force involved in a failure to comply with the requirements for electronic recordings of custodial interrogations pursuant to Section 29-1-16 NMSA 1978 or a failure to record the incident by using a body-worn camera approved by the department of public safety.
I. As used in this section:
(1) "deadly force" means a degree of force that is reasonably likely to cause death or great bodily harm and that is the direct cause of death or great bodily harm and not merely a contributing factor in the death of a person with a preexisting condition;
(2) "great bodily harm" means an injury to the person that creates a high probability of death; causes serious disfigurement; or results in permanent or protracted loss or impairment of the function of any member or organ of the body;
(3) "in-custody death" means a death that occurs while an individual is being detained under color of law and is the result of specific action taken by a peace officer or a breach of policy by a peace officer, but does not include a death that is the result of natural causes;
(4) "peace officer" means any public official or public officer vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes; "peace officer" also includes a correctional officer employed by a privately operated correctional facility; and
(5) "primary investigative agency" means the agency that is responsible for assigning a case agent to the investigation, conducting a complete investigation and ensuring the integrity and transparency of the investigation process."
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