SENATE BILL 476

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Antoinette Sedillo Lopez

 

 

 

 

 

AN ACT

RELATING TO CRIMINAL PROCEDURE; PROVIDING A NOTICE AND HEARING PROCEDURE FOLLOWING THE USE OF DEADLY FORCE BY A LAW ENFORCEMENT OFFICER; PROVIDING EXCLUSIVE AUTHORITY FOR RELATED INVESTIGATIONS; REQUIRING A WRITTEN DETERMINATION BY A DISTRICT COURT JUDGE; PRESERVING PROSECUTORIAL DISCRETION.

 

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 LAW ENFORCEMENT OFFICER RESULTING IN DEATH OR GREAT BODILY INJURY--REQUIRED NOTIFICATION--APPOINTMENT OF SPECIAL PROSECUTOR--PROBABLE CAUSE HEARING--RECOMMENDATION OF SPECIAL PROSECUTOR--PROSECUTORIAL DISCRETION.--

          A. When in the course of a law enforcement officer's duties, a law enforcement officer uses deadly force against a person that results in the person's death or injury, the procedures provided in this section shall apply.

          B. Within twenty-four hours of a person's death or injury, the sheriff or the chief of police of the jurisdiction in which the incident occurred shall report the incident to the district attorney of the county in which the incident occurred.           C. Within twenty-four hours of receiving notice pursuant to Subsection B of this section, the district attorney shall report the incident to the governor. 

          D. Within three days of receiving notification pursuant to Subsection C of this section, the governor shall select an assistant attorney general with experience in criminal prosecution to serve as a special prosecutor to represent the state at a probable cause hearing at which the special prosecutor shall present evidence of the law enforcement officer's use of deadly force and evidence of criminal offenses committed by the officer, including 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.

          E. The assistant attorney general shall supervise the investigation of the incident pending the probable cause hearing. The New Mexico state police division of the department of public safety shall assist the assistant attorney general in the investigation. All law enforcement agencies shall fully cooperate with and promptly respond to requests for information from the special prosecutor and the law enforcement agency with exclusive authority over the investigation.

          F. The probable cause hearing provided for in Subsection D of this section shall:

                (1) be held before a district court judge in the district court for the county in which the death or great bodily injury occurred;

                (2) take place within ninety days of the appointment of the special prosecutor;

                (3) be open to the public unless the district court judge finds good cause otherwise; and

                (4) include an opportunity for the special prosecutor and the law enforcement officer to present relevant evidence not limited by the Rules of Evidence.

          G. After hearing relevant evidence, the court shall determine whether there is probable cause to believe that the law enforcement officer committed a crime, including 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.

          H. The court shall issue a written order that provides whether it found probable cause that a crime has been committed and the reasons for that finding. The court's order shall be a public record and the court shall provide a copy of the order to the district attorney of the county in which the death occurred.

          I. Following the probable cause hearing and the issuance of the court's order, the special prosecutor shall make a recommendation to the district attorney of the county in which the incident occurred on whether the law enforcement officer should be prosecuted.

          J. Nothing in this section, including the recommendation made by a special prosecutor, shall limit the discretion of the district attorney of the county in which the incident occurred with respect to determining whether to file charges against the law enforcement officer whose conduct was the subject of a probable cause hearing provided for in this section.

          K. Any applicable filing or other procedural deadlines are tolled pending the hearing provided for in this section.

          L. As used in this section:

                (1) "deadly force" means violent force known to create a substantial risk of causing death or great bodily injury; and

                (2) "law enforcement officer" means a 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."

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