Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 154 Third Substitute (2021GS)

Sponsor

Rep. Birkeland, K.

Final action

House/ filed 3/5/2021

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• defines terms;
• requires that officers who observe other officers violating certain procedure and conduct rules file a report outlining the violations;
• sets penalties; and
• makes technical corrections.

Every vote on this bill

Bill text

USE OF FORCE REVISIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kera Birkeland
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill addresses the use of force by peace officers.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ requires that officers who observe other officers violating certain procedure and
conduct rules file a report outlining the violations;
▸ sets penalties; and
▸ makes technical corrections.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-2-404
, as last amended by Laws of Utah 2015, Chapter 47
76-2-408
, as last amended by Laws of Utah 2019, Chapter 395
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-2-404
 is amended to read:
76-2-404.
Peace officer's use of deadly force.
(1) As used in this section:
(a) (i) "Imminent" means that, based on the totality of the circumstances, a reasonable
peace officer in the same situation would believe an individual has the present ability,
opportunity, and apparent intent to immediately cause death or serious bodily injury to the
peace officer or another individual, and that the threat of harm must be immediately confronted
and addressed.
(ii) "Imminent" does not mean merely a fear of future harm, no matter how great the
fear or likelihood of harm, or the threat of harm that is not immediate.
(b) "Necessary" means given the totality of the circumstances, a reasonable peace
officer in the same situation would conclude that there was no reasonable or non-lethal
alternative to the use of deadly force that would prevent death or serious bodily injury to the
peace officer or to another individual.
(c) "Totality of circumstances" means all facts known to the peace officer at the time,
including the nature of the offense for which the individual is being apprehended, whether
non-lethal or a lesser level of force is reasonably available and likely to be more or as effective
as lethal force, the conduct of the individual, and the tactical conduct and decisions of the
officer, including whether the officer escalated the situation, necessitating the use of force.
(2) (a) A peace officer may not employ physical force, including non-lethal force,
against an individual if the individual is already subdued and under the physical control of a
peace officer or fully cooperating with a peace officer's commands:
(b) Notwithstanding Subsection (2)(a), a peace officer may use reasonable force against
the individual if the individual presents an imminent threat of serious bodily injury or death to
another individual.
(3) (a) If a peace officer knowingly observes another officer using physical force that
exceeds the degree of force permitted under the circumstances, or knowingly observes another
officer violating department policy or state law, the officer shall, without regard for chain of
command, if the officer can reasonably do so:
(i) intervene to prevent or stop the use of force or misconduct; or
(ii) attempt to de-escalate the other officer's excessive use of force; and
(iii) promptly document and file a report of the incident with the department's internal
affairs division, regardless of whether the officer intervened or attempted de-escalation.
(b) If a law enforcement agency determines that an officer has intentionally violated
Subsection (3)(a), the agency shall report the violation to the Peace Officer Standards and
Training Division in accordance with Subsection 
53-6-211
(6).
[
(1)
] 
(4)
 A peace officer, or any [
person
] 
individual
 acting by the officer's command in
providing aid and assistance, is justified in using deadly force when:
(a) the officer is acting in obedience to and in accordance with the judgment of a
competent court in executing a penalty of death under Subsection 
77-18-5.5
(2), (3), or (4);
(b) effecting an arrest or preventing an escape from custody following an arrest, where
the officer reasonably believes that deadly force is necessary to prevent the arrest from being
defeated by escape; and
(i) the officer has probable cause to believe that the suspect has committed a felony
offense involving the infliction [
or threatened infliction
] of death [
or serious bodily injury
]; or
(ii) the officer has probable cause to believe the suspect poses [
a
] 
an imminent
 threat of
death or serious bodily injury to the officer or to [
others
] 
an individual other than the suspect
 if
apprehension is delayed; or
(c) the officer reasonably believes that the use of deadly force is necessary to prevent
imminent
 death or serious bodily injury to the officer or [
another person
] 
an individual other
than the suspect
.
[
(2)
] 
(5)
 If feasible, [
a verbal warning should be given by the officer
] prior to any use
of deadly force
, the peace officer shall:
(a) identify himself or herself as a peace officer and give a clear verbal warning of his
or her intent to use a firearm or other physical force
 under Subsection [
(1)(b) or (1)(c).
] 
(4)(b)
or (4)(c), with sufficient time for the warning to be observed and followed, unless doing so
would place the officer or an individual other than the suspect at risk of imminent serious
bodily injury or death; and
(b) attempt to de-escalate the situation prior to resorting to deadly force.
(6) An officer's use of deadly force is not justified if:
(a) another officer gave conflicting commands to the individual who was killed at the
time the force was used which would cause a reasonable individual to be confused about which
commands to follow;
(b) an individual was killed due to the criminally negligent conduct of the officer,
including situations in which the victim is an individual other than the individual that the
officer was seeking to arrest, retain in custody, or defend against;
(c) the officer failed to comply with Subsection (5); or
(d) the officer's conduct unnecessarily escalated the situation.
Section 2. Section 
76-2-408
 is amended to read:
76-2-408.
Peace officer use of force -- Investigations.
(1) As used in this section:
(a) "Dangerous weapon" means a firearm or an object that in the manner of its use or
intended use is capable of causing death or serious bodily injury to [
a person
] 
an individual
.
(b) "Deadly force" means a force that creates or is likely to create, or that the [
person
]
individual
 using the force intends to create, a substantial likelihood of death or serious bodily
injury to [
a person
] 
an individual
.
(c) "In custody" means in the legal custody of a state prison, county jail, or other
correctional facility, including custody that results from:
(i) a detention to secure attendance as a witness in a criminal case;
(ii) an arrest for or charging with a crime and committing for trial;
(iii) committing for contempt, upon civil process, or by other authority of law; or
(iv) sentencing to imprisonment on conviction of a crime.
(d) "Investigating agency" means a law enforcement agency, the county or district
attorney's office, or an interagency task force composed of officers from multiple law
enforcement agencies.
(e) "Officer" means the same as the term "law enforcement officer" as that term is
defined in Section 
53-13-103
.
(f) "Officer-involved critical incident" means any of the following:
(i) an officer's use of deadly force;
(ii) an officer's use of a dangerous weapon against a person that causes injury to any
person;
(iii) death or serious bodily injury to any person, other than the officer, resulting from
an officer's:
(A) use of a motor vehicle while the officer is on duty; or
(B) use of a government vehicle while the officer is off duty;
(iv) the death of [
a person
] 
an individual
 who is in custody, but excluding a death that
is the result of disease, natural causes, or conditions that have been medically diagnosed prior
to the [
person's
] 
individual's
 death; or
(v) the death of or serious bodily injury to [
a person
] 
an individual
 not in custody, other
than an officer, resulting from an officer's attempt to prevent [
a person's
] 
an individual's
 escape
from custody, to make an arrest, or otherwise to gain physical control of [
a person
] 
an
individual
.
(g) "Serious bodily injury" means the same as that term is defined in Section 
76-1-601
.
(2) When an officer-involved critical incident occurs:
(a) upon receiving notice of the officer-involved critical incident, the law enforcement
agency having jurisdiction where the incident occurred shall, as soon as practical, notify the
county or district attorney having jurisdiction where the incident occurred; and
(b) the chief executive of the law enforcement agency and the county or district
attorney having jurisdiction where the incident occurred shall:
(i) jointly designate an investigating agency for the officer-involved critical incident;
and
(ii) designate which agency is the lead investigative agency if the officer-involved
critical incident involves multiple investigations.
(3) The county or district attorney's office in Subsection (2)(a) shall consider the
totality of circumstances surrounding the event, including:
(a) the sequence of events leading up to the use of force from the time the officer was
first made aware of the circumstances;
(b) whether non-lethal or less violent force was reasonably available as an option to the
officer;
(c) whether the officer attempted to de-escalate the situation prior to use of force, if it
was feasible to do so;
(d) whether the officer's conduct escalated the situation;
(e) whether the officer identified himself or herself and gave a verbal warning in
accordance with Subsection 
76-2-404
(5), if it was feasible to do so; and
(f) whether the force used was necessary.
[
(3)
] 
(4)
 The investigating agency under Subsection (2) may not be the law
enforcement agency employing the officer who is alleged to have caused or contributed to the
officer-involved critical incident.
[
(4)
] 
(5)
 This section does not preclude the law enforcement agency employing an
officer alleged to have caused or contributed to the officer-involved critical incident from
conducting an internal administrative investigation.
[
(5)
] 
(6)
 Each law enforcement agency that is part of or administered by the state or
any of its political subdivisions shall[
, by December 31, 2015,
] adopt and post on its publicly
accessible website:
(a) the policies and procedures the agency has adopted to select the investigating
agency if an officer-involved critical incident occurs in its jurisdiction and one of its officers is
alleged to have caused or contributed to the officer-involved incident; and
(b) the protocols the agency has adopted to ensure that any investigation of
officer-involved incidents occurring in its jurisdiction are conducted professionally,
thoroughly, and impartially.
(7) All investigations involving an officer's misconduct or use of force shall be
completed within 90 days of the incident occurring. If an investigation is not completed within
days, the county or district attorney shall post a public statement on the county or district
attorney's website stating a reasonable estimate when the investigation will be complete and the
reason for the delay.
(8) All investigative reports and any resulting findings or analyses shall be published
on the county or district attorney's website within five business days of completion.