1     
USE OF FORCE REVISIONS

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2021 GENERAL SESSION

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STATE OF UTAH

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Chief Sponsor: Kera Birkeland

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Senate Sponsor: ____________

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7     LONG TITLE
8     General Description:
9          This bill addresses the use of force by peace officers.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     requires that officers who observe other officers violating certain procedure and
14     conduct rules file a report outlining the violations;
15          ▸     sets penalties; and
16          ▸     makes technical corrections.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          76-2-404, as last amended by Laws of Utah 2015, Chapter 47
24          76-2-408, as last amended by Laws of Utah 2019, Chapter 395
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 76-2-404 is amended to read:
28          76-2-404. Peace officer's use of deadly force.
29          (1) As used in this section:
30          (a) (i) "Imminent" means that, based on the totality of the circumstances, a reasonable
31     peace officer in the same situation would believe an individual has the present ability,
32     opportunity, and apparent intent to immediately cause death or serious bodily injury to the
33     peace officer or another individual, and that the threat of harm must be immediately confronted
34     and addressed.
35          (ii) "Imminent" does not mean merely a fear of future harm, no matter how great the
36     fear or likelihood of harm, or the threat of harm that is not immediate.
37          (b) "Necessary" means given the totality of the circumstances, a reasonable peace
38     officer in the same situation would conclude that there was no reasonable or non-lethal
39     alternative to the use of deadly force that would prevent death or serious bodily injury to the
40     peace officer or to another individual.
41          (c) "Totality of circumstances" means all facts known to the peace officer at the time,
42     including the nature of the offense for which the individual is being apprehended, whether
43     non-lethal or a lesser level of force is reasonably available and likely to be more or as effective
44     as lethal force, the conduct of the individual, and the tactical conduct and decisions of the
45     officer, including whether the officer escalated the situation, necessitating the use of force.
46          (2) (a) A peace officer may not employ physical force, including non-lethal force,
47     against an individual if the individual is already subdued and under the physical control of a
48     peace officer or fully cooperating with a peace officer's commands:
49          (b) Notwithstanding Subsection (2)(a), a peace officer may use reasonable force against
50     the individual if the individual presents an imminent threat of serious bodily injury or death to
51     another individual.
52          (3) (a) If a peace officer knowingly observes another officer using physical force that
53     exceeds the degree of force permitted under the circumstances, or knowingly observes another
54     officer violating department policy or state law, the officer shall, without regard for chain of
55     command, if the officer can reasonably do so:
56          (i) intervene to prevent or stop the use of force or misconduct; or
57          (ii) attempt to de-escalate the other officer's excessive use of force; and
58          (iii) promptly document and file a report of the incident with the department's internal
59     affairs division, regardless of whether the officer intervened or attempted de-escalation.
60          (b) If a law enforcement agency determines that an officer has intentionally violated
61     Subsection (3)(a), the agency shall report the violation to the Peace Officer Standards and
62     Training Division in accordance with Subsection 53-6-211(6).
63          [(1)] (4) A peace officer, or any [person] individual acting by the officer's command in
64     providing aid and assistance, is justified in using deadly force when:
65          (a) the officer is acting in obedience to and in accordance with the judgment of a
66     competent court in executing a penalty of death under Subsection 77-18-5.5(2), (3), or (4);
67          (b) effecting an arrest or preventing an escape from custody following an arrest, where
68     the officer reasonably believes that deadly force is necessary to prevent the arrest from being
69     defeated by escape; and
70          (i) the officer has probable cause to believe that the suspect has committed a felony
71     offense involving the infliction [or threatened infliction] of death [or serious bodily injury]; or
72          (ii) the officer has probable cause to believe the suspect poses [a] an imminent threat of
73     death or serious bodily injury to the officer or to [others] an individual other than the suspect if
74     apprehension is delayed; or
75          (c) the officer reasonably believes that the use of deadly force is necessary to prevent
76     imminent death or serious bodily injury to the officer or [another person] an individual other
77     than the suspect.
78          [(2)] (5) If feasible, [a verbal warning should be given by the officer] prior to any use
79     of deadly force, the peace officer shall:
80          (a) identify himself or herself as a peace officer and give a clear verbal warning of his
81     or her intent to use a firearm or other physical force under Subsection [(1)(b) or (1)(c).] (4)(b)
82     or (4)(c), with sufficient time for the warning to be observed and followed, unless doing so
83     would place the officer or an individual other than the suspect at risk of imminent serious
84     bodily injury or death; and
85          (b) attempt to de-escalate the situation prior to resorting to deadly force.
86          (6) An officer's use of deadly force is not justified if:
87          (a) another officer gave conflicting commands to the individual who was killed at the
88     time the force was used which would cause a reasonable individual to be confused about which
89     commands to follow;
90          (b) an individual was killed due to the criminally negligent conduct of the officer,
91     including situations in which the victim is an individual other than the individual that the
92     officer was seeking to arrest, retain in custody, or defend against;
93          (c) the officer failed to comply with Subsection (5); or
94          (d) the officer's conduct unnecessarily escalated the situation.
95          Section 2. Section 76-2-408 is amended to read:
96          76-2-408. Peace officer use of force -- Investigations.
97          (1) As used in this section:
98          (a) "Dangerous weapon" means a firearm or an object that in the manner of its use or
99     intended use is capable of causing death or serious bodily injury to [a person] an individual.
100          (b) "Deadly force" means a force that creates or is likely to create, or that the [person]
101     individual using the force intends to create, a substantial likelihood of death or serious bodily
102     injury to [a person] an individual.
103          (c) "In custody" means in the legal custody of a state prison, county jail, or other
104     correctional facility, including custody that results from:
105          (i) a detention to secure attendance as a witness in a criminal case;
106          (ii) an arrest for or charging with a crime and committing for trial;
107          (iii) committing for contempt, upon civil process, or by other authority of law; or
108          (iv) sentencing to imprisonment on conviction of a crime.
109          (d) "Investigating agency" means a law enforcement agency, the county or district
110     attorney's office, or an interagency task force composed of officers from multiple law
111     enforcement agencies.
112          (e) "Officer" means the same as the term "law enforcement officer" as that term is
113     defined in Section 53-13-103.
114          (f) "Officer-involved critical incident" means any of the following:
115          (i) an officer's use of deadly force;
116          (ii) an officer's use of a dangerous weapon against a person that causes injury to any
117     person;
118          (iii) death or serious bodily injury to any person, other than the officer, resulting from
119     an officer's:
120          (A) use of a motor vehicle while the officer is on duty; or
121          (B) use of a government vehicle while the officer is off duty;
122          (iv) the death of [a person] an individual who is in custody, but excluding a death that
123     is the result of disease, natural causes, or conditions that have been medically diagnosed prior
124     to the [person's] individual's death; or
125          (v) the death of or serious bodily injury to [a person] an individual not in custody, other
126     than an officer, resulting from an officer's attempt to prevent [a person's] an individual's escape
127     from custody, to make an arrest, or otherwise to gain physical control of [a person] an
128     individual.
129          (g) "Serious bodily injury" means the same as that term is defined in Section 76-1-601.
130          (2) When an officer-involved critical incident occurs:
131          (a) upon receiving notice of the officer-involved critical incident, the law enforcement
132     agency having jurisdiction where the incident occurred shall, as soon as practical, notify the
133     county or district attorney having jurisdiction where the incident occurred; and
134          (b) the chief executive of the law enforcement agency and the county or district
135     attorney having jurisdiction where the incident occurred shall:
136          (i) jointly designate an investigating agency for the officer-involved critical incident;
137     and
138          (ii) designate which agency is the lead investigative agency if the officer-involved
139     critical incident involves multiple investigations.
140          (3) The county or district attorney's office in Subsection (2)(a) shall consider the
141     totality of circumstances surrounding the event, including:
142          (a) the sequence of events leading up to the use of force from the time the officer was
143     first made aware of the circumstances;
144          (b) whether non-lethal or less violent force was reasonably available as an option to the
145     officer;
146          (c) whether the officer attempted to de-escalate the situation prior to use of force, if it
147     was feasible to do so;
148          (d) whether the officer's conduct escalated the situation;
149          (e) whether the officer identified himself or herself and gave a verbal warning in
150     accordance with Subsection 76-2-404(5), if it was feasible to do so; and
151          (f) whether the force used was necessary.
152          [(3)] (4) The investigating agency under Subsection (2) may not be the law
153     enforcement agency employing the officer who is alleged to have caused or contributed to the
154     officer-involved critical incident.
155          [(4)] (5) This section does not preclude the law enforcement agency employing an
156     officer alleged to have caused or contributed to the officer-involved critical incident from
157     conducting an internal administrative investigation.
158          [(5)] (6) Each law enforcement agency that is part of or administered by the state or
159     any of its political subdivisions shall[, by December 31, 2015,] adopt and post on its publicly
160     accessible website:
161          (a) the policies and procedures the agency has adopted to select the investigating
162     agency if an officer-involved critical incident occurs in its jurisdiction and one of its officers is
163     alleged to have caused or contributed to the officer-involved incident; and
164          (b) the protocols the agency has adopted to ensure that any investigation of
165     officer-involved incidents occurring in its jurisdiction are conducted professionally,
166     thoroughly, and impartially.
167          (7) All investigations involving an officer's misconduct or use of force shall be
168     completed within 90 days of the incident occurring. If an investigation is not completed within
169     90 days, the county or district attorney shall post a public statement on the county or district
170     attorney's website stating a reasonable estimate when the investigation will be complete and the
171     reason for the delay.
172          (8) All investigative reports and any resulting findings or analyses shall be published
173     on the county or district attorney's website within five business days of completion.