HOUSE BILL 503
56th legislature - STATE OF NEW MEXICO - first session, 2023
Patricia Roybal Caballero and Pamelya Herndon
RELATING TO LAW ENFORCEMENT; ENACTING THE INDEPENDENT REVIEW OF FORCE ACT; ESTABLISHING A PROCESS FOR THE INDEPENDENT INVESTIGATION AND PROSECUTION OF DEADLY FORCE CASES; CREATING THE DEADLY FORCE CITIZEN REVIEW BOARD; ESTABLISHING A SPECIAL PROSECUTOR DATABASE FROM WHICH TO APPOINT A PROSECUTING ATTORNEY IN A DEADLY FORCE CASE; ALLOWING THE APPOINTMENT OF A MULTI-AGENCY TASK FORCE OR SEPARATE LAW ENFORCEMENT AGENCY TO CONDUCT INVESTIGATIONS; EMPOWERING THE ATTORNEY GENERAL TO REVIEW AND PROSECUTE DEADLY FORCE CASES IF DECLINED BY AN APPOINTED SPECIAL PROSECUTING ATTORNEY; PROVIDING FOR CITIZEN REVIEW OF DEADLY FORCE CASES AND RECOMMENDATIONS FOR DISCIPLINARY ACTION; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1
through 8 of this act may be cited as the "Independent Review of Force Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Independent Review of Force 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. "citizen review board" means the deadly force citizen review board;
C. "deadly force" means violent force known
to create a substantial risk of causing death or great bodily
harm, including the discharge of a firearm, stun gun, tear gas, chemical weapon or kinetic impact projectile from a propulsion device, use of a chokehold, attacking a person using a police dog or engaging in a physical altercation with a person;
D. "deadly force case" means an instance in which a law enforcement officer in the course of the officer's duties uses deadly force, there is an in-custody death or a citizen submits a complaint of a law enforcement officer using deadly force;
E. "great bodily harm" means injury to a person
(1) results in serious disfigurement;
(2) results in permanent loss or protracted impairment of a bodily function, member, limb or organ; or
(3) creates a high probability of death;
F. "in-custody death" means a death that occurs while an individual is being detained under color of law;
G. "law enforcement agency" means an agency of the
state or political subdivision of the state that employs certified law enforcement officers and is authorized by law or a government agency to engage in or supervise the prevention, detection, investigation or enforcement of any violation of law or ordinance or the police department of a tribe that has entered into an agreement with the department of public safety pursuant to Section 29-1-11 NMSA 1978;
H. "law enforcement officer" means a public
official or public officer vested by law with a duty to
maintain public order, enforce the law, seize evidence,
investigate crime, make arrests for crime, detain a person
suspected of or convicted of committing a crime, whether that
duty extends to all crimes or is limited to specific crimes, or
hold in custody a person accused of a criminal offense or
members of the national guard of New Mexico when called to
active duty by the governor; and
I. "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. [NEW MATERIAL] PROCEDURE--NOTIFICATION OF DEADLY FORCE--SELECTION OF PROSECUTING ATTORNEY--CONFLICT OF INTEREST.--
A. When a law enforcement officer, in the course of the officer's duties, uses deadly force against a person and the person suffers death or serious bodily injury, the procedures in this section shall apply.
B. The chief law enforcement officer of the law enforcement agency that employs the law enforcement officer who used deadly force shall within twenty-four hours of the use of deadly force notify the attorney general and the secretary of public safety. The notification shall include the time, date, location and details of the incident, the name of any involved law enforcement officers, the name and contact information of the victim and the injuries sustained by the victim. A victim of a use of deadly force pursuant to Subsection A of this section or a victim's spouse, sibling, parent, guardian or legal representative may submit a complaint to notify the attorney general of the use of deadly force. Within twenty-four hours of notice, the attorney general shall notify the chair of the citizen review board.
C. Jurisdiction over the investigation and prosecution of the law enforcement officer involved is divested of the district attorney of the judicial district in which the incident occurred.
D. Within seventy-two hours of receiving notification from the attorney general, the citizen review board shall randomly select and appoint a prosecuting attorney from the special prosecutor database. A prosecuting attorney shall be disqualified from the case and another prosecuting attorney shall be randomly selected from the database if the prosecuting attorney:
(1) serves or has previously served the judicial district where the incident occurred;
(2) has ever had a professional or personal relationship with a law enforcement officer, witness or victim involved in the incident;
(3) has a family member that has served the judicial district where the incident occurred or has ever been employed by the law enforcement agency that employs a law enforcement officer involved in the incident; or
(4) has another conflict of interest, as determined by attorney general rule.
E. Jurisdiction over the investigation and prosecution of a law enforcement officer involved in the deadly force case is vested in the appointed prosecuting attorney who shall prosecute in the name of the state. The prosecuting attorney shall investigate or cause the investigation of the alleged use of deadly force, determine if sufficient grounds exist for the prosecution of criminal conduct and exercise prosecutorial discretion within seventy-five days of being appointed.
F. If the prosecuting attorney declines to prosecute, the prosecuting attorney shall, within three days, make public a detailed report of the investigative findings and the reasoning not to prosecute, with the names of victims and witnesses redacted, and transmit a copy of the report to the chair of the citizen review board and the attorney general.
G. Within seven days of receiving a report from a prosecuting attorney, the citizen review board shall review the report and issue an approval or disapproval. Upon:
(1) approval, the jurisdiction and power to investigate and prosecute are returned to the district attorney of the judicial district in which the incident occurred; or
(2) disapproval, the citizen review board shall within seventy-five days detail the reasons for the disapproval in a written statement, notify the attorney general and transmit to the attorney general a copy of the prosecuting attorney's report and the citizen review board's written disapproval statement. Jurisdiction and power to investigate and prosecute are vested in the office of the attorney general, and the attorney general shall review the case, conduct additional investigations as needed, determine if sufficient grounds exist for the prosecution of criminal conduct and exercise prosecutorial discretion within seventy-five days.
H. Nothing in the Independent Review of Force Act shall be construed to limit prosecutorial discretion of an appointed prosecuting attorney or the attorney general.
I. The department of public safety shall assist the citizen review board and attorney general in any investigation pursuant to the Independent Review of Force Act, and all law enforcement agencies shall fully cooperate with and promptly respond to requests for information from the appointed prosecuting attorney or citizen review board.
J. A law enforcement agency that fails to comply with Subsection I of this section or Section 5 of the Independent Review of Force Act shall be ineligible to apply for grants administered by any state agency. The attorney general shall afford the law enforcement agency an opportunity to contest a finding that the agency did not comply.
K. Any costs incurred by an investigatory task force or a state agency to conduct the investigation shall be reimbursed by the public entity that employs the law enforcement officer whose use of force is being investigated or the public entity in whose custody the in-custody death occurred. Any costs incurred by the appointed prosecuting attorney to conduct the prosecution shall be reimbursed by the district attorney's office in the judicial district where the conduct is alleged to have occurred.
SECTION 4. [NEW MATERIAL] INVESTIGATIONS OF DEADLY FORCE--MULTI-AGENCY TASK FORCE.--
A. The department of public safety shall assist and support the investigations of a prosecuting attorney appointed by the citizen review board or attorney general, including conducting investigations or, if requested, assigning a multi-agency task force or law enforcement agency to lead investigations.
B. The law enforcement agency that employs a law enforcement officer being investigated shall not lead investigations or be part of an investigatory task force, but may provide assistance as requested.
C. If the law enforcement officer being investigated is employed by the department of public safety, the prosecuting attorney shall request a law enforcement agency or multi-agency task force to conduct the investigations, and the secretary of public safety shall appoint the agency or members of the task force to conduct investigations.
SECTION 5. [NEW MATERIAL] BOARD REVIEW--DISCIPLINARY ACTION.--After the procedures of Section 3 of the Independent Review of Force Act have been completed and:
A. an involved law enforcement officer is convicted of a crime, the officer shall be decommissioned, terminated and decertified;
B. an involved law enforcement officer is charged and prosecuted but not convicted of a crime, the citizen review board shall review the investigation and any reports created, perform research or investigation as needed and consult with the officer's supervisor to determine a binding disciplinary action, including a letter of reprimand, suspension without pay, suspension with pay, demotion, reassignment within a department, termination, involuntary restitution, decertification, restorative justice or mediation. The binding disciplinary action shall be implemented by the law enforcement agency that employs the law enforcement officer; or
C. an involved law enforcement officer is not charged and prosecuted:
(1) the citizen review board shall review the investigation and all findings and reports prepared, perform research or investigation as needed and consult with the officer's supervisor to make a non-binding recommendation for a disciplinary action. If the law enforcement agency that employs the law enforcement officer declines to take the disciplinary action, the agency shall make public its reasoning and transmit a copy of such reasoning to the citizen review board; and
(2) jurisdiction and power to investigate and prosecute shall be vested with the district attorney of the district in which the incident occurred.
SECTION 6. [NEW MATERIAL] DEADLY FORCE CITIZEN REVIEW BOARD--CREATED--MEMBERS--TERMS.--
A. The "deadly force citizen review board" is created to ensure independent investigation and prosecution in deadly force cases, review results of deadly force cases and recommend or mandate disciplinary action against a law enforcement officer involved in a deadly force case. The citizen review board is administratively attached to the office of the attorney general.
B. The citizen review board shall be composed of the following members:
(1) a chair appointed by the attorney general as a non-voting member, except to break a tie vote, and who shall preside over meetings of the board;
(2) a vice chair appointed by the governor;
(3) a vice chair appointed by the department of public safety; and
(4) one citizen resident from each judicial district.
C. Except as provided in Subsection D of this section, members of the citizen review board shall be appointed initially within ninety days of the effective date of the Independent Review of Force Act, with one-half of the citizen resident members appointed for a term of two years and the other one-half appointed for a term of four years. After the initial appointments, all members shall be appointed for four-year terms. A vacancy resulting from the death or resignation of a member shall be filled in the same manner as the member was initially appointed.
D. The chair and vice chairs shall be appointed initially by July 31, 2023. The chair and vice chair appointed by the office of the attorney general shall be appointed initially for a term of four years, and the vice chair appointed by the department of public safety shall be appointed initially for a term of two years.
E. The chair and vice chairs shall solicit and collect applications for and appoint the citizen resident board members. Appointment of a citizen resident board member shall be made by majority vote of the chair and vice chairs.
F. The board shall meet at the call of the chair. A majority of the appointed board members shall constitute a quorum for the transaction of business. Members of the citizen review board shall receive, for their service as members of the board, per diem and mileage as provided in the Per Diem and Mileage Act.
SECTION 7. [NEW MATERIAL] DUTIES--DEADLY FORCE CITIZEN REVIEW BOARD.--The citizen review board shall:
A. establish and maintain a database of special prosecutors in each of the judicial districts;
B. randomly assign a special prosecutor to a deadly force case and verify that there is no conflict of interest;
C. receive complaints from civilians regarding the alleged use of deadly force by a law enforcement officer;
D. review reports on the investigation, findings and prosecution of deadly force cases;
E. refer cases to the attorney general in which an appointed prosecuting attorney declined to prosecute;
F. vote on whether to approve or disapprove of an appointed prosecuting attorney's declination to prosecute;
G. concordant with a deadly force case investigated or prosecuted pursuant to the Independent Review of Force Act and after consultation with an involved law enforcement officer's direct supervisor, make a binding or recommended disciplinary determination for an officer involved in a deadly force case and communicate such determination to the law enforcement agency employing the officer;
H. recommend an independent task force or law enforcement agency to conduct investigations;
I. review investigations conducted pursuant to the Independent Review of Force Act and issue findings regarding the accuracy, completeness and impartiality of the investigations and the sufficiency of any prosecution or discipline resulting from the investigations;
J. make public reports on the activities of the citizen review board, including investigations, findings, approvals, disapprovals, recommendations, determinations and oversight activities; and
K. perform other duties as reasonably necessary to effectuate the citizen review board's lawful purpose.
SECTION 8. [NEW MATERIAL] SPECIAL PROSECUTOR DATABASE.--
A. The citizen review board shall establish and maintain a special prosecutor database with at least three qualified prosecuting attorneys from each judicial district. The attorney general shall promulgate rules for the minimum required experience and expertise to qualify for the special prosecutor database beyond being an attorney licensed to practice in the state, in good standing and with past prosecutorial experience.
B. The citizen review board shall solicit and review applications from prosecuting attorneys to compose the special prosecutor database. The governor and attorney general shall each nominate at least ten prosecuting attorneys and a district attorney of each judicial district shall nominate at least three prosecuting attorneys for the consideration of the citizen review board. Prosecuting attorneys shall be accepted into the special prosecutor database upon majority vote of the citizen review board.
SECTION 9. Section 36-1-18 NMSA 1978 (being Laws 1909, Chapter 22, Section 2, as amended) is amended to read:
"36-1-18. DUTIES OF DISTRICT ATTORNEY.--
A. Each district attorney shall:
(1) prosecute and defend for the state in all courts of record of the counties of [his] the district attorney's district all cases, criminal and civil, in which the state or any county in [his] the district may be a party or may be interested, except as provided in the Independent Review of Force Act;
(2) represent the county before the board of county commissioners of any county in [his] the district attorney's district in all matters before the board whenever requested to do so by the board, and [he] the district attorney may appear before the board when sitting as a board of equalization without request;
(3) advise all county and state officers whenever requested; and
(4) represent any county in [his] the district attorney's district in all civil cases in which the county may be concerned in the supreme court or court of appeals, but not in suits brought in the name of the state.
B. A district attorney may contract with an Indian nation, tribe or pueblo within the boundaries of the district attorney's judicial district for the purpose of authorizing the district attorney or [his] the district attorney's staff to:
(1) serve as a tribal prosecutor; or
(2) prosecute alleged violations of tribal codes by tribal members in tribal courts."
SECTION 10. APPROPRIATION.--Two million dollars ($2,000,000) is appropriated from the general fund to the office of the attorney general for expenditure in fiscal years 2024 through 2026 for the purposes of the Independent Review of Force Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2026 shall revert to the general fund.
SECTION 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2023.
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