Relates to the justified use of physical force; removes requirement that a person facing an imminent physical threat must retreat; provides immunity from civil and criminal liability.
STATE OF NEW YORK
________________________________________________________________________
3718
2021-2022 Regular Sessions
IN SENATE
January 30, 2021
___________
Introduced by Sen. ORTT -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law and the civil
practice law and rules, in relation to the justified use of physical
force
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 35.15 of the penal law, as added by chapter 73 of
2 the laws of 1968, subdivisions 1 and 2 as amended by chapter 511 of the
3 laws of 2004, is amended to read as follows:
4 § 35.15 Justification; use of physical force in defense of a person.
5 1. A person may, subject to the provisions of subdivision two of this
6 section, use physical force upon another person when and to the extent
7 he or she reasonably believes such to be necessary to defend himself,
8 herself or a third person from what he or she reasonably believes to be
9 the use or imminent use of unlawful physical force by such other person,
10 unless:
11 (a) The latter's conduct was provoked by the actor with intent to
12 cause physical injury to another person; or
13 (b) The actor was the initial aggressor; except that in such case the
14 use of physical force is nevertheless justifiable if the actor has with-
15 drawn from the encounter and effectively communicated such withdrawal to
16 such other person but the latter persists in continuing the incident by
17 the use or threatened imminent use of unlawful physical force; or
18 (c) The physical force involved is the product of a combat by agree-
19 ment not specifically authorized by law.
20 2. A person may not use deadly physical force upon another person
21 under circumstances specified in subdivision one of this section unless:
22 (a) The actor reasonably believes that such other person is using or
23 about to use deadly physical force. [Even in such case, however, the
24 actor may not use deadly physical force if he or she knows that with
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02253-01-1
S. 3718 2
1 complete personal safety, to oneself and others he or she may avoid the
2 necessity of so doing by retreating; except that the] The actor is under
3 no duty to retreat if he or she is:
4 (i) in his or her dwelling or any other place that he or she is
5 lawfully permitted to be and is not the initial aggressor; or
6 (ii) a police officer or peace officer or a person assisting a police
7 officer or a peace officer at the latter's direction, acting pursuant to
8 section 35.30 of this article; or
9 (b) He or she reasonably believes that such other person is committing
10 or attempting to commit a kidnapping, forcible rape, forcible criminal
11 sexual act or robbery; or
12 (c) He or she reasonably believes that such other person is committing
13 or attempting to commit a burglary, and the circumstances are such that
14 the use of deadly physical force is authorized by subdivision three of
15 section 35.20 of this article.
16 § 2. Section 35.05 of the penal law is amended by adding a new subdi-
17 vision 3 to read as follows:
18 3. When a defendant has offered the defense of justification for the
19 threatened or actual use of deadly force, the court shall instruct the
20 jury that they shall not be permitted to consider the possibility of
21 retreat as a factor in determining whether a person who threatened or
22 used deadly force reasonably believed that the force was necessary to
23 prevent death or serious bodily injury to himself or another.
24 § 3. Section 35.10 of the penal law is amended by adding a new subdi-
25 vision 7 to read as follows:
26 7. A person who is justified in threatening or using physical force
27 against another person in defense of himself, herself, another person,
28 or property pursuant to this section is immune from criminal and civil
29 liability for any damages incurred by the aggressor pursuant to the
30 application of reasonable physical force or threatened use of force.
31 § 4. Subdivision 1 of section 120.14 of the penal law, as amended by
32 chapter 222 of the laws of 1994, is amended to read as follows:
33 1. He or she intentionally places or attempts to place another person
34 in reasonable fear of physical injury, serious physical injury or death
35 by displaying a deadly weapon, dangerous instrument or what appears to
36 be a pistol, revolver, rifle, shotgun, machine gun or other firearm;
37 provided, however, that where a person is justified in the use of phys-
38 ical force upon another person in self-defense or defense of a third
39 person, or in defense of premises under the provisions of article thir-
40 ty-five of this chapter, such person shall not be liable under the
41 provisions of this subdivision; or
42 § 5. Section 140.10 of the criminal procedure law is amended by adding
43 a new subdivision 4 to read as follows:
44 4. No person shall be arrested pursuant to this section for a use of
45 force, unless the police officer believes that there is probable cause
46 to find that the use of force was not justifiable under article thirty-
47 five of the penal law.
48 § 6. Section 180.10 of the criminal procedure law is amended by adding
49 a new subdivision 8 to read as follows:
50 8. Upon arraignment, if a defendant offers the defense of justifica-
51 tion to any allegation involving the use of physical force, including
52 deadly physical force, the court shall dismiss the charges unless the
53 court determines by clear and convincing evidence that the use of such
54 physical force by the defendant was not reasonable or justified.
55 § 7. Rule 3211 of the civil practice law and rules is amended by
56 adding a new subdivision (i) to read as follows:
S. 3718 3
1 (i) (1) Motion to dismiss; use of force; justification. A party may
2 move to dismiss a cause of action on the basis that the moving party
3 used reasonable force under section 35.15 of the penal law. Upon filing
4 a motion to dismiss, the court shall hold a hearing prior to trial and
5 shall grant such motion unless the party responding to the motion proves
6 by clear and convincing evidence that the use of force was not reason-
7 able or justified.
8 (2) The court shall award reasonable attorney fees, court costs,
9 compensation for any loss of income and all other expenses incurred by a
10 person in defense of any civil action arising from the person's use of
11 reasonable force pursuant to section 35.15 of the penal law if the court
12 finds that the defendant's actions were justified and dismisses the case
13 under this subdivision.
14 § 8. The civil practice law and rules is amended by adding a new
15 section 3012-c to read as follows:
16 § 3012-c. Certificate of merit in certain actions to recover damages
17 for personal injury, injury to property or wrongful death. (a) In any
18 action to recover damages for personal injury, injury to property or
19 wrongful death brought by an individual who committed a crime against
20 the respondent, where the injuries complained of resulted from a use of
21 physical force or deadly physical force by the respondent at the time of
22 the commission of the crime, the complaint shall be accompanied by a
23 certificate, signed by the attorney for the plaintiff, certifying that
24 the attorney has reviewed the facts of the case and that, to the best of
25 such attorney's knowledge, information and belief there is a reasonable
26 basis for the commencement of such action and that the respondent was
27 not justified in the use of physical force or deadly physical force
28 against the plaintiff.
29 (b) Where a certificate is required pursuant to this section, a single
30 certificate shall be filed for each action even if more than one defend-
31 ant has been named in the complaint or is subsequently named.
32 (c) If the attorney for the plaintiff fails to provide the certificate
33 as required by subdivision (a) of this section the court may dismiss the
34 complaint or make such final or conditional order with regard to such
35 failure as is just including but not limited to denial of the accrual of
36 any interest, costs, attorneys' fees and other fees, relating to the
37 underlying mortgage debt. Any such dismissal shall be without prejudice
38 and shall not be on the merits.
39 § 9. This act shall take effect immediately; provided however, that
40 section five of this act shall take effect upon the repeal of subdivi-
41 sion 4 of section 140.10 of the criminal procedure law pursuant to
42 section 59 of chapter 222 of the laws of 1994, as amended.
