SENATE BILL 265
56th legislature - STATE OF NEW MEXICO - first session, 2023
Antoinette Sedillo Lopez
RELATING TO CRIMINAL PROCEDURE; PROVIDING A REPORTING MECHANISM AND AN ASSIGNMENT OF A PROSECUTOR FOR AN IN-CUSTODY DEATH OR WHEN A PERSON SUFFERS GREAT BODILY HARM OR DEATH AFTER A PEACE OFFICER USES FORCE AGAINST THE PERSON; PROVIDING FOR AN INDEPENDENT INVESTIGATION; REQUIRING A QUARTERLY INVESTIGATION REPORT; REQUIRING A DETAILED REPORT FOR A DECLINATION OF PROSECUTION.
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] IN-CUSTODY DEATH--GREAT BODILY HARM OR DEATH--PEACE OFFICER USE OF FORCE--REPORTING MECHANISM AND INVESTIGATION--REPORTS--PROVIDING JURISDICTION.--
A. The procedures provided in this section shall
apply for an in-custody death and when a person suffers great bodily harm or death after a peace officer uses force on the person in the course of the peace officer's duties.
B. Within twenty-four hours of an in-custody death or a person suffering great bodily harm or death after a peace officer uses force on the person, the sheriff or the chief of police of the jurisdiction in which the great bodily harm, death or in-custody death occurred shall report the great bodily harm, death or in-custody death in writing to the district attorney of the judicial district in which the great bodily harm, death or in-custody death occurred. The sheriff or chief of police shall report all instances of suspected great bodily harm to the appropriate district attorney, even if a more thorough assessment of great bodily harm will be undertaken at a later date.
C. Within twenty-four hours of receiving written notice pursuant to Subsection B of this section, the district attorney shall report the incident in writing to the governor and the attorney general. The governor shall keep a log of reported incidents, which shall be considered public records pursuant to the Inspection of Public Records Act. The log shall, at a minimum, include the date of occurrence, the date of the report made to the district attorney, the name of any officers involved who used physical force, the location, a description of the incident and injuries to the person suffering great bodily harm or death.
D. The relevant prosecuting authority shall represent the state at a probable cause hearing at which it shall present evidence of the peace officer's use of 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. Nothing in Subsection D of this section shall be construed to limit prosecutorial discretion of the relevant prosecuting authority.
F. The department of public safety shall be the default primary investigative agency and shall investigate, as soon as practicable, instances of in-custody death and instances of a person suffering great bodily harm or death after a peace officer used force on that person. This shall not preclude the department of public safety from requesting assistance with the investigation from other agencies as part of a task force agreement. If a task force is utilized, the department of public safety shall remain the primary agency, and the agency involved in the use of force may assist but shall not have any type of lead role in the investigation. All law enforcement agencies shall fully cooperate with and promptly respond to requests for information from the relevant prosecuting authority and the law enforcement agency or independent investigator charged with authority over an investigation.
G. When an in-custody death or use of force against a person who then suffers great bodily harm or death is allegedly committed by a member of the department of public safety, the department shall maintain the lead role in the investigation, but members of an outside agency shall be required to assist. A minimum of two agents from the attorney general's office or another competent investigative agency shall work the investigation in conjunction with the department of public safety.
H. The relevant prosecuting authority shall be responsible for determining whether the facts and applicable law allow for prosecution of the peace officer for criminal liability resulting from the alleged use of force against a person who then suffers great bodily harm or death or an in-custody death. The relevant prosecuting authority may also assist a concurrent investigative grand jury to subpoena witnesses, records and physical items related to the investigation as otherwise permitted by law. Any costs incurred by the department of public safety to conduct the investigation shall be reimbursed to the department by the public entity that employs the peace 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 attorney general's office to conduct the prosecution shall be reimbursed to the attorney general's office by the district attorney's office in the judicial district where the conduct is alleged to have occurred.
I. During an investigation, the relevant prosecuting authority shall provide quarterly reports to the attorney general, to the district attorney in whose judicial district the offense is alleged to have occurred and to the governor, providing any material updates that do not impair the investigation. These quarterly reports shall be considered public records pursuant to the Inspection of Public Records Act. Any declination of prosecution by the relevant prosecuting authority shall be documented in a detailed report that includes the reasons for declination and cites all relevant evidence, a copy of which report shall be provided to the attorney general, the district attorney in whose judicial district the offense is alleged to have occurred and the governor and shall be considered a public record pursuant to the Inspection of Public Records Act. Nothing in this subsection shall be construed to allow the disclosure of information that is otherwise excepted from disclosure by the Inspection of Public Records Act.
J. When a district attorney declines to exercise original prosecutorial jurisdiction pursuant to Section 36-1-18 NMSA 1978, the attorney general shall have jurisdiction to prosecute unlawful uses of force and in-custody deaths and to prosecute any unlawful use of force involved in a failure to comply with the requirements for electronic recordings of custodial interrogations pursuant to Section 29-1-16 NMSA 1978 or a failure to record the incident by using a body-worn camera approved by the department of public safety.
K. As used in this section:
(1) "great bodily harm" means an injury to the person that creates a high probability of death; causes serious disfigurement; or results in permanent or protracted loss or impairment of a bodily function, member, limb or organ;
(2) "in-custody death" means a death that occurs while an individual is being detained under color of law;
(3) "peace officer" means any public official or public officer vested by law with a duty to maintain public order, enforce the law, hold in custody a person accused of a criminal offense or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes; "peace officer" includes a correctional officer employed by a privately operated correctional facility and a detoxification police-service aide; and
(4) "primary investigative agency" means the agency that is responsible for assigning a case agent to the investigation, conducting a complete investigation and ensuring the integrity and transparency of the investigation process."
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