SENATE BILL 100

54th legislature - STATE OF NEW MEXICO - second session, 2020

INTRODUCED BY

Antoinette Sedillo Lopez

 

 

 

 

 

AN ACT

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

 

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 EXCESSIVE OR DEADLY FORCE BY A LAW ENFORCEMENT OFFICER RESULTING IN DEATH OR BODILY INJURY--REQUIRED NOTIFICATION--APPOINTMENT OF SPECIAL PROSECUTOR--PROBABLE CAUSE HEARING--PENDING DETERMINATION BY A DISTRICT COURT.--

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

          B. Within twenty-four hours of a person's injury or death, the sheriff or the chief of police of the jurisdiction in which the injury or death occurred shall report the injury or death to the district attorney of the county in which the injury or death 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 and the attorney general. The governor shall keep a log of reported incidents.

          D. Within three days of receiving notification pursuant to Subsection C of this section, the attorney general shall select an assistant attorney general 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 excessive or 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 special prosecutor shall determine if the investigation shall be done by a law enforcement agency or an independent investigator, and the special prosecutor shall assign exclusive authority of the investigation to a law enforcement agency or an independent investigator. 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 bodily injury or death 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 New Mexico 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.

     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 attorney general and the governor.

          H. Following the probable cause hearing and the issuance of the court's order, if the court does not find probable cause that the law enforcement officer committed a crime, then the special prosecutor may not pursue a criminal case against the law enforcement officer. If the court determines that there is probable cause a crime has been committed, then the special prosecutor shall begin prosecuting the law enforcement officer in the district court of the jurisdiction in which the injury or death occurred, unless the law enforcement officer can show that a change of venue is necessary to receive fair process.

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

          J. As used in this section:

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