Analysis

Synopsis:

 House Bill 254 (HB 254) provides a reporting mechanism following the use of deadly force by a peace officer that results in great bodily harm or death, and requires an independent investigation.  

Analysis:

 House Bill 254 (HB 254) enacts a new section of criminal procedure that provides the procedures that apply when a peace officer uses deadly force that results in great bodily harm or death, and any other unnatural death that occurs when a person is in custody. 

The bill provides that within 24 hours of the harm or death, the District Attorney is to be notified by the jurisdiction’s sheriff or chief of police.   Then, the District Attorney must then report the incident within 24 hours to the Governor, who keeps a public log of all incidents.  The “relevant prosecuting authority” (which the bill does not define) represents the state at a probable cause hearing where the prosecutor can present evidence of the peace officer’s use of excessive or deadly force, and may also present evidence of criminal offenses committed by the officer, including murder, manslaughter, aggravated assault or batter.  The prosecutor is given the discretion to determine if the facts and law allow for the prosecution of the peace officer.  Costs of the investigation are paid out of the county’s general fund, and costs of the prosecution are paid by that district attorney office.  

The primary investigative agency in these situations is the Department of Public Safety (DPS), and DPS may request help from other agencies as part of a “task force agreement”.  However, when the investigation is centered on a member of DPS, the lead investigator is maintained by DPS but members of an outside agencies are required to assist. At least two agents from the Attorney General’s office must collaborate with the investigation with DPS, and all other law enforcement agencies must cooperate with the prosecutor and investigator.  

The bill requires the prosecutor to send quarterly reports (which are public records) on the investigation to the Attorney General and the local district attorney.  The bill further provides that the Attorney General has concurrent jurisdiction to prosecute these offenses, along with the ability to prosecute unlawful use of deadly force involved in a failure to comply with recording custodial interrogations, or a failure to record the incident using a body-camera.  

The bill provides definitions for deadly force, great bodily harm, in-custody death, and primary investigative agency.  

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