SB0227PAS

SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 227

55th legislature - STATE OF NEW MEXICO - first session, 2021

AN ACT

RELATING TO LAW ENFORCEMENT; PROVIDING FOR THE INSPECTION OF LAW ENFORCEMENT MISCONDUCT INVESTIGATIONS; REQUIRING REPORTING OF OFFICER-INVOLVED INJURIES OR DEATHS; AMENDING THE CRIME OF JUSTIFIABLE HOMICIDE BY A PUBLIC OFFICER OR PUBLIC EMPLOYEE; ENACTING THE LAW ENFORCEMENT OFFICER PROCEDURES ACT; REGULATING THE USE OF PHYSICAL FORCE BY OFFICERS; ESTABLISHING A DUTY OF OFFICERS TO INTERVENE; REQUIRING USE OF FORCE POLICIES; PRESCRIBING STANDARDS FOR SERVING SEARCH WARRANTS.

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

SECTION 1. Section 14-2-1 NMSA 1978 (being Laws 1947, Chapter 130, Section 1, as amended) is amended to read:

"14-2-1. RIGHT TO INSPECT PUBLIC RECORDS--EXCEPTIONS.-- Every person has a right to inspect public records of this state except:

A. records pertaining to physical or mental examinations and medical treatment of persons confined to an institution;

B. letters of reference concerning employment, licensing or permits;

C. letters or memoranda that are matters of opinion in personnel files or students' cumulative files; provided that records describing the disposition of law enforcement misconduct investigations shall not be exempt from inspection;

D. portions of law enforcement records that reveal:

(1) confidential sources, methods or information; or

(2) before charges are filed, names, address, contact information or protected personal identifier information [as defined in this act] of individuals who are:

(a) accused but not charged with a crime; or

(b) victims of or non-law-enforcement witnesses to an alleged crime of: 1) assault with intent to commit a violent felony pursuant to Section 30-3-3 NMSA 1978 when the violent felony is criminal sexual penetration; 2) assault against a household member with intent to commit a violent felony pursuant to Section 30-3-14 NMSA 1978 when the violent felony is criminal sexual penetration; 3) stalking pursuant to Section 30-3A-3 NMSA 1978; 4) aggravated stalking pursuant to Section 30-3A-3.1 NMSA 1978; 5) criminal sexual penetration pursuant to Section 30-9-11 NMSA 1978; or 6) criminal sexual contact pursuant to Section 30-9-12 NMSA 1978.

Law enforcement records include evidence in any form received or compiled in connection with a criminal investigation or prosecution by a law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that they contain the information listed in this subsection; provided that the presence of such information on a law enforcement record does not exempt the record from inspection;

E. as provided by the Confidential Materials Act;

F. trade secrets, attorney-client privileged information and long-range or strategic business plans of public hospitals discussed in a properly closed meeting;

G. tactical response plans or procedures prepared for or by the state or a political subdivision of the state, the publication of which could reveal specific vulnerabilities, risk assessments or tactical emergency security procedures that could be used to facilitate the planning or execution of a terrorist attack; and

H. as otherwise provided by law."

SECTION 2. A new section of the Department of Public Safety Act is enacted to read:

"[NEW MATERIAL] REPORTING OFFICER-INVOLVED INJURIES OR DEATHS--PROSCRIBING PENALTIES.--

A. The secretary shall create a uniform protocol for a law enforcement agency to report officer-involved injuries or deaths. The uniform protocol shall require a report of the following information regarding each incident:

(1) the reporting law enforcement agency;

(2) the date of the incident;

(3) the location of the incident;

(4) the age, sex, race and ethnicity of each officer involved;

(5) the age, sex, race and ethnicity of each injured or deceased person involved, if known; and, if unknown, a description of the inquiry undertaken to ascertain that information;

(6) whether the person was injured, received emergency medical care, was hospitalized or died as a result of the incident;

(7) a description of the injuries sustained by each injured person;

(8) whether and in what manner each injured or deceased person used, exhibited or possessed a deadly weapon during the incident;

(9) whether each injured or deceased person exhibited signs or symptoms of mental illness or impairment at the time of the incident;

(10) the reason for the use of force by officers;

(11) whether the reporting law enforcement agency determined the use of force was justified;

(12) whether an officer involved attempted to call medical or mental health professionals to the scene during the incident;

(13) whether each officer involved was on duty during the incident;

(14) whether each officer involved was in uniform during the incident;

(15) a description of the physical force used by each officer during the incident;

(16) a description of the de-escalation tactics and techniques used by each officer involved during the incident;

(17) for each officer present, a description of all attempts to intervene to prevent the use of unreasonable physical force during the incident; and

(18) whether the incident occurred during or as a result of:

(a) an emergency call or request for assistance and a description of the facts and circumstances;

(b) the execution of a warrant or other enforcement action; or

B. Not later than thirty days after an officer-involved injury or death, the law enforcement agency employing the officer involved in the incident shall complete and submit to the secretary a report using the uniform protocol. If the agency maintains a website, the agency shall post the report online upon submission to the secretary. Not later than five days after receiving a report, the secretary shall post the report on the department's website. If no officer-involved injuries or deaths have occurred during a quarterly period, the agency shall submit a no incident report to the secretary in a manner prescribed by the secretary. The quarterly periods for no incident reports pursuant to this subsection shall be:

(1) January 1 to March 31;

(2) April 1 to June 30;

(3) July 1 to September 30; and

(4) October 1 to December 31.

C. A law enforcement agency that fails to comply with Subsection B of this section shall be ineligible to apply for grants administered by any state agency. The secretary shall afford the law enforcement agency an opportunity to contest a finding that the agency did not comply with Subsection B of this section.

D. The secretary shall prepare an annual report regarding all officer-involved injuries or deaths that occurred during the preceding fiscal year. The report shall include:

(1) the total number of officer-involved injuries or deaths;

(2) the number of officer-involved injuries or deaths reported by each law enforcement agency;

(3) the entirety of data reported using the uniform protocol; and

(4) any operational, policy, regulatory or legislative recommendations to reduce the number and seriousness of officer-involved injuries or deaths.

E. On or before September 30 of each year, the secretary shall submit the report to the governor, the speaker of the house of representatives, the president pro tempore of the senate and the appropriate legislative interim committee dealing with courts, corrections and justice. On or before September 30 of each year, the secretary shall post the report on the department's website.

F. As used in this section:

(1) "chokehold" means the use of the lateral vascular neck restraint, carotid restraint, chokehold, neck hold or any other action that involves placing any part of an officer's body on or around a person's neck;

(2) "deadly weapon" means a firearm or any object manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury or any object that, in the manner of its use, is capable of causing death or serious bodily injury;

(3) "de-escalation tactics and techniques" means proactive actions and approaches used by a law enforcement officer to stabilize a law enforcement situation so that more time, options and resources are available to gain a person's voluntary compliance and to reduce or eliminate the need to use force, including verbal persuasion, warnings, slowing down the pace of an incident, waiting out a person, creating distance between the law enforcement officer and a threat and requesting additional resources to resolve the incident, including but not limited to calling in medical or mental health professionals to address a potential medical or mental health crisis;

(4) "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion or the frame or receiver of any such weapon;

(5) "law enforcement agency" means the police department of a municipality, the sheriff's office of a county, the police department of a university, the New Mexico state police or the department;

(6) "law enforcement officer" means a full-time state or municipal police officer, county sheriff, deputy sheriff, conservation officer, motor transportation enforcement officer or other state employee authorized by state law to enforce criminal statutes;

(7) "officer-involved injury or death" means an event during which a law enforcement officer:

(a) discharges a firearm, actually or proximately causing injury or death to another;

(b) discharges a stun gun, actually or proximately causing injury or death to another;

(c) uses a chokehold, discharges tear gas or other chemical weapon, discharges rubber pellets or bullets from a propulsion device or attacks a person using a dog, actually or proximately causing injury or death of a person; or

(d) engages in a physical altercation with a member of the public who sustains serious bodily injury or requests or receives medical care as a result;

(8) "serious bodily injury" means bodily injury that results in:

(a) permanent disfigurement;

(b) protracted loss or impairment of a bodily function, limb or organ; or

(9) "stun gun" means a portable device or weapon, regardless of whether it passes an electrical shock by means of a dart or projectile via a wire lead, from which an electrical current, impulse, wave or beam that is designed to incapacitate temporarily, injure or kill may be directed."

SECTION 3. Section 30-2-6 NMSA 1978 (being Laws 1963, Chapter 303, Section 2-7, as amended) is amended to read:

"30-2-6. JUSTIFIABLE HOMICIDE BY PUBLIC OFFICER OR PUBLIC EMPLOYEE.--

A. Homicide is justifiable when committed by a public officer or public employee or those acting by their command and in their aid and assistance:

(1) in obedience to any judgment of a competent court;

(2) when necessarily committed in overcoming actual resistance to the execution of some legal process or to the discharge of any other legal duty;

(3) when necessarily committed in retaking felons who have been rescued or who have escaped or when necessarily committed in arresting felons fleeing from justice; or

(4) when necessarily committed in order to prevent the escape of a felon from any place of lawful custody or confinement.

B. [For the purposes of this section, homicide is "necessarily committed" when a public officer or public employee has probable cause to believe he or another is threatened with serious harm or deadly force while performing those lawful duties described in this section. Whenever feasible, a public officer or employee should give warning prior to using deadly force.] Homicide is "necessarily committed" only if a public officer or public employee complied with the provisions of Section 6 of this 2021 act."

SECTION 4. [NEW MATERIAL] SHORT TITLE.--Sections 4 through 9 of this act may be cited as the "Law Enforcement Officer Procedures Act".

SECTION 5. [NEW MATERIAL] DEFINITIONS.--As used in the Law Enforcement Officer Procedures Act:

A. "chokehold" means the use of the lateral vascular neck restraint, carotid restraint, chokehold, neck hold or any other action that involves placing any part of a law enforcement officer's body on or around a person's neck;

B. "deadly physical force" means physical force that can be reasonably expected to cause death or serious physical injury;

C. "de-escalation tactics and techniques" means proactive actions and approaches used by a law enforcement officer to stabilize a law enforcement situation so that more time, options and resources are available to gain a person's voluntary compliance and to reduce or eliminate the need to use force, including verbal persuasion, warnings, slowing down the pace of an incident, waiting out a person, creating distance between the law enforcement officer and a threat and requesting additional resources to resolve the incident, including but not limited to calling in medical or mental health professionals to address a potential medical or mental health crisis;

D. "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion or the frame or receiver of any such weapon;

E. "imminent harm" means when a person creating a risk has the present ability, opportunity and apparent intent to immediately cause serious physical injury or death; provided that imminent harm shall not be merely a fear of future harm but is a risk that, based on the information available at the time, must be instantly confronted and addressed;

F. "law enforcement agency" means the police department of a municipality, the sheriff's office of a county, the New Mexico state police or the department of public safety;

G. "law enforcement objective" means:

(1) a lawful arrest or detention of a person;

(2) the prevention or termination of the commission of a crime;

(3) the intervention in an attempted suicide or self-inflicted injury;

(4) the enforcement of a valid certificate of evaluation;

(5) the defense of a law enforcement officer or person from the physical acts of another individual; or

(6) a lawful search when an individual is actively resisting;

H. "law enforcement officer" means a full-time state or municipal police officer, county sheriff, deputy sheriff, conservation officer, motor transportation enforcement officer or other state employee authorized by state law to enforce criminal statutes;

I. "necessary" means when, after all available alternatives have been exhausted, no available, effective alternative was known or should have been known to a reasonable person in the circumstances, without regard to the subjective beliefs of the law enforcement officer;

J. "proportional" means not excessive in relation to a direct and legitimate law enforcement objective;

K. "stun gun" means a portable device or weapon, regardless of whether it passes an electrical shock by means of a dart or projectile via a wire lead, from which an electrical current, impulse, wave or beam that is designed to incapacitate temporarily, injure or kill may be directed; and

L. "totality of the circumstances" means the entire duration of an interaction between law enforcement officers and a victim of force, from the first contact through the conclusion of the incident, including consideration of contextual factors the law enforcement officer knew or should have known during such interaction, including:

(1) whether the law enforcement officer's conduct during the interaction contributed to the risk of imminent harm to an identifiable person by the victim of force;

(2) whether the law enforcement officer attempted reasonable and available de-escalation tactics and techniques during the interaction;

(3) whether the law enforcement officer failed to identify as a law enforcement officer to the victim of force;

(4) whether an arrest could have been effected at a later time with a lower risk to the safety of the public or to the victim of force;

(5) whether the law enforcement officer made reasonable accommodations in light of the victim of force's physical disability, mental illness, developmental or neurological condition or disability, drug interactions, linguistic limitations, then-existing mental, emotional or physical condition or other characteristics that may have interfered with the victim of force's ability to cooperate or comply with a law enforcement officer's instructions;

(6) whether the law enforcement officer failed to call in a medical or mental health professional in response to a potential medical or mental health crises;

(7) whether the law enforcement officer gave any warnings to the victim of force before undertaking a use of force or other escalation; and

(8) whether the law enforcement officer exacerbated the injury sustained by the victim of force by subsequent actions."

SECTION 6. [NEW MATERIAL] REGULATION OF PHYSICAL FORCE BY LAW ENFORCEMENT OFFICERS.--

A. All persons in New Mexico shall have a right against the use of force prohibited by this section.

B. A law enforcement officer shall not use physical force upon another person unless the officer has exhausted reasonable and available de-escalation tactics and techniques and, based on the totality of the circumstances, such force is proportionate and necessary to:

(1) prevent an imminent threat to an identifiable person, where the amount of force used is proportional to the threat of imminent harm to the identifiable person;

(2) effect an arrest of a person whom the law enforcement officer has probable cause to believe has committed a criminal offense; or

(3) prevent the escape from custody of a person whom the law enforcement officer has probable cause to believe has committed an offense, unless the law enforcement officer knows that the custody is unauthorized.

C. Law enforcement officers shall use physical force only to the extent the use of force accomplishes a legitimate law enforcement objective. A law enforcement officer shall immediately modulate the use of physical force as the threat diminishes and shall cease the use of physical force as soon as possible after:

(1) the person upon whom the physical force is being used:

(a) is under the officer's control; or

(b) no longer poses a threat of physical injury to the officer or another person; or

(2) the use of physical force will no longer accomplish, or is no longer reasonable and proportional to accomplish, a legitimate law enforcement objective.

D. A law enforcement officer shall not use deadly physical force upon another person unless it is used as a last resort, after the officer has exhausted reasonable and available de-escalation tactics and techniques and, based on the totality of the circumstances, such force is necessary to prevent imminent death or serious physical injury to an identifiable person and the amount of force used is proportional to the threat of imminent harm to an identifiable person. The use of deadly force shall not present a threat of serious physical injury to a third person.

E. The use of deadly force against a person who poses a danger only to the person's self is not justified.

F. Each application of force shall be evaluated independently as a separate use of force to be separately justified as lawful pursuant to the provisions of this section. A law enforcement officer's failure to use feasible alternatives to the use of force shall be a consideration in determining whether the use of force was justified.

G. A law enforcement officer shall not discharge any firearm into or at a fleeing motor vehicle, unless, based on the totality of the circumstances and after exhausting reasonable and available de-escalation tactics and techniques, such discharge is necessary to prevent an imminent death or serious physical injury to an identifiable person and the discharge is proportional to the threat of imminent harm to an identifiable person. For purposes of this subsection, use of the vehicle itself shall not be imminent harm.

H. A law enforcement officer shall not intentionally position the officer's body or vehicle in front of a fleeing motor vehicle, unless such action is a tactic approved by the law enforcement agency that employs the officer. A law enforcement officer moving into or remaining in the path of a moving vehicle, whether deliberate or inadvertent, shall not be justification for discharging a firearm at the vehicle or any of its occupants or any other use of physical or deadly physical force. A law enforcement officer in the path of an approaching vehicle shall attempt to move to a position of safety rather than discharge a firearm at the vehicle or any of the occupants of the vehicle.

I. A law enforcement officer shall not use a chokehold.

J. Notwithstanding the standards described above in Subsections B through I of this section, an otherwise lawful use of force shall be unlawful if it is motivated in substantial part by anger, malice, retaliation or any other intent unrelated to law enforcement.

K. If a law enforcement officer used physical force in violation of this section, the law enforcement officer shall be immediately disciplined and, depending on the seriousness of the violation, may be decommissioned and terminated from the officer's position as provided by law. Upon a finding by a court, the secretary of public safety or the head of any law enforcement agency that a law enforcement officer used physical force, including deadly physical force, in violation of this section, which resulted in serious bodily injury or death, or that the law enforcement officer violated Subsection I of this section, the law enforcement officer shall be immediately decommissioned, terminated from the officer's position and disqualified from future employment as a law enforcement officer in New Mexico.

L. To the extent an employment contract conflicts with the provisions of this section, the contract shall be amended at the earliest available opportunity to conform with this section.

M. A law enforcement officer who uses force against a person in a manner inconsistent with the provisions of this section that does not result in death may be charged with battery or aggravated battery pursuant to the provisions of Sections 30-3-4 and 30-3-5 NMSA 1978.

N. A law enforcement officer who uses force against a person in a manner inconsistent with the provisions of this section that results in death may be charged with manslaughter or murder pursuant to the provisions of Chapter 30, Article 2 NMSA 1978.

SECTION 7. [NEW MATERIAL] DUTY TO INTERVENE.--

A. A law enforcement officer present and observing another law enforcement officer using physical force, including deadly physical force, that appears to be beyond that which is lawful based on the totality of the circumstances shall intercede to prevent the use of excessive force, unless interceding would result in imminent harm to either officer or another identifiable individual.

B. A law enforcement officer who observes another law enforcement officer using physical force, including deadly physical force, that appears to be beyond that which is lawful based on the totality of the circumstances shall report the incident to the observed officer's direct supervisor as soon as reasonably possible but no later than the end of the observing officer's shift. The observing law enforcement officer shall prepare a detailed written statement describing the incident consistent with the uniform protocols set forth in Subsection A of Section 2 of this 2021 act. The observing law enforcement officer's written statement shall be included in the supervisor's report.

C. All persons in New Mexico have a right to the intervention of law enforcement officers in the circumstances set forth in this section. A law enforcement officer who had a duty to intervene and failed to do so shall be disciplined and, depending on the seriousness of the violation, may be decommissioned and terminated from that officer's position. A law enforcement officer who had a duty to intervene and failed to do so may be held liable, jointly and severally with any officer who used unreasonable force for any injuries or death caused by such officer's unreasonable use of force.

SECTION 8. [NEW MATERIAL] REQUIRING USE OF FORCE POLICIES--PUBLISHING POLICIES.--

A. Every law enforcement agency shall adopt a policy regarding the use of force by its officers.

B. The use of force policy required pursuant to Subsection A of this section shall address the following:

(1) required procedures for de-escalation tactics and techniques before using or increasing the use of force;

(2) procedures to determine the appropriate level of force to be used in particular situations, with examples;

(3) a ban on the use of chokeholds;

(4) required procedures for issuing warnings prior to discharging a firearm or discharging a stun gun;

(5) clear limits on the use of force pursuant to Section 6 of this 2021 act, ensuring that less than deadly physical force is used only to the extent that it is proportionate and the least amount of force necessary to achieve its lawful objective and that deadly physical force is only used as a last resort when necessary to defend against imminent threats to human life;

(6) the duty of law enforcement officers to intervene pursuant to Section 7 of this 2021 act; and

(7) comprehensive reporting protocols pursuant to Subsection A of Section 2 of this 2021 act.

C. Not later than ninety days after the effective date of this 2021 act, the head of each law enforcement agency shall publish the use of force policy required by Subsection A of this section in a location that is accessible to the public and in a conspicuous place on the agency's website, if any.

SECTION 9. [NEW MATERIAL] SEARCH WARRANTS--REQUIRING KNOCK AND ANNOUNCE--SHOWING SEARCH WARRANT--PROVIDING A PENALTY.--

A. A law enforcement officer executing a search warrant shall knock and announce the officer's presence and purpose before forcibly entering a residence. A law enforcement officer shall not dispense with the requirement of this subsection in any circumstances. A law enforcement officer shall not seek, execute or participate in the execution of a search warrant in which the executing officers do not knock and announce their presence and purpose.

B. When executing a search warrant, a law enforcement officer shall be recognizable and identifiable as a uniformed law enforcement officer. The law enforcement officer shall provide audible notice of the officer's authority and purpose in a manner reasonably expected to be heard by occupants of such place to be searched prior to the execution of such search warrant.

C. After entering and securing the place to be searched, and prior to undertaking any search or seizure pursuant to the search warrant, the executing law enforcement officer shall read and give a copy of the search warrant to the person to be searched or the owner of the place to be searched or, if the owner is not present, to any occupant of the place to be searched. If the place to be searched is unoccupied, the executing law enforcement officer shall leave a copy of the search warrant suitably affixed to the place to be searched.

D. A law enforcement officer charged with the execution of a search warrant shall be accompanied only by such other persons as may be reasonably necessary for the successful execution of the search warrant with all practicable safety.

E. A law enforcement officer entering a premises pursuant to a search warrant shall not be armed with specialized, military-style equipment, including assault rifles, submachine guns, shotguns, flash bang stun grenades or other stun agents, except when expressly authorized by the search warrant upon a showing of particularized suspicion that an occupant of the target premises is in actual possession of deadly weaponry and the use of specialized weaponry by law enforcement officers is likely to be necessary.

F. Before entering the premises of any property to be searched, a law enforcement officer shall:

(1) physically knock on an entry door to the premises in a manner and duration that can be heard by the occupants and additionally, when available, sound any bell or other device affixed to the outside of a building that can be rung by visitors to signal a visitor's arrival;

(2) clearly and verbally announce as law enforcement having a search warrant in a manner that can be heard by the occupants; and

(3) clearly and verbally announce that the occupants must open the door pursuant to the search warrant and that force may be used if the occupants fail to respond.

G. Evidence seized or obtained shall be inadmissible if subsequent judicial review determines that a law enforcement officer did not comply with Subsections A through F of this section.

- 24 -