Town of Guilderland, NY Article I Deadly Physical Force Policy

[Adopted 12-6-1988]

§ 81-1 Statement of policy.

The normal day-to-day operations of the Police Department may, on occasion, require the use of reasonable physical force, which cannot be otherwise controlled. However, in no case should any officer use any physical force against a citizen until all other reasonable alternatives have been exhausted. Officers are permitted and authorized to use whatever force reasonable to protect themselves and other citizens from bodily harm. Officers are authorized, under § 35.30 of the New York State Penal Law, to use deadly physical force when it appears necessary under that statute. However, we as police officers are expected to use greater restraint and to employ a great deal more self-control than allowed at the extreme by the statute. Therefore, in recognition of various moral and civic implications in the taking of human life, officers will adhere to more restrictive use of deadly physical force. The burden shall rest on each and every officer in the decision to use any form of deadly physical force against a human, and the realization that each and every situation is different should be paramount. Officers will not exercise the use of deadly physical force solely upon meeting the criteria of the Penal Law and departmental rules and regulations. The use of deadly physical force will depend on what the immediate situation warrants. In any situation potentially involving the use of deadly physical force, the officer is expected to act in a reasonable and prudent manner, and in any situation where the use of deadly physical force may be anticipated, each officer will use or attempt to use all other methods to terminate the situation before using deadly physical force to defend his or her life or the life of a citizen.

§ 81-2 Rules and regulations.

A. Each officer should use any and all reasonable means available to him/her in the apprehension of felons or in the termination of potentially dangerous or deadly situations before the use of deadly physical force is considered.

B. Officers will not, in any case, fire warning shots.

C. Indiscriminate use of a firearm or other deadly physical force will be cause for disciplinary action.

D. Section 35.30 of the New York State Penal Law:

(1) A police officer or a peace officer, in the course of effecting or attempting to effect an arrest or of preventing or attempting to prevent the escape from custody of a person whom he reasonably believes to have committed an offense, may use physical force when and to the extend he reasonably believes such to be necessary to effect the arrest or to prevent the escape from custody, or to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force for such purposes only when he reasonably believes that:

(a) The offense committed by such person was a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person;

(b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; or

(c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.

(2) The fact that a police officer or peace officer is justified in using deadly physical force under circumstances prescribed in Subsection D(1)(a) and (b) does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he is not seeking to arrest or retain in custody.

(3) A person who has been directed by a police officer or a peace officer to assist such police officer or peace officer to effect an arrest or to prevent an escape from custody may use physical force, other than deadly physical force, when and to the extent that he reasonably believes such to be necessary to carry out such police officer's or peace officer's direction, unless he knows that the arrest or prospective arrest is not or was not authorized and he may use deadly physical force under such circumstances when:

(a) He reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or

(b) He is directed or authorized by such police officer or peace officer to use deadly physical force unless he knows that the police officer or peace officer himself is not authorized to use deadly physical force under the circumstances.

(4) A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense and who in fact has committed such offense; and he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:

(a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or

(b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible sodomy and who is in immediate flight therefrom.

(5) A guard, police officer or peace officer who is charged with the duty of guarding prisoners in a detention facility, as that term is defined in § 205.00 of the Penal Law, or while in transit to or from a detention facility, may use physical force when and to the extent that he reasonably believes such to be necessary to prevent the escape of a prisoner from a detention facility or from custody while in transit thereto or therefrom.

E. An officer executing a warrant or attempting an arrest may draw his weapon should he/she feel his/her life or the life of a citizen may be threatened with the use of deadly physical force.

F. Officers may draw and discharge their weapons at a person or persons who are attempting to commit a felony, or whom the officer reasonably believes may have committed a felony, wherein the perpetrator is armed or believed to be armed with a deadly weapon or is capable of causing deadly physical injury to the officer or a citizen.

G. Officers may draw and fire their weapons while defending their lives or the life of another citizen from the use or imminent use of deadly physical force.

H. Each officer is solely responsible for the use, care and safety of his firearm.

I. Each officer is solely responsible when his/her firearm is drawn and or discharged for any reason.

J. In addition to other sections, officers may draw their weapons for cleaning, range or firearms instruction and official inspections.

K. Officers may draw and fire their weapons at animal life only when such action is necessary and can be done in such a manner so as to eliminate any danger to the public.

L. Any officer causing his firearm, or one issued to him, to be discharged either accidentally or for just cause will immediately notify the Chief of Police.

M. Except in emergency situations, officers will not use any firearm not issued to them, excluding the patrol vehicle shotgun, unless prior approval is granted by the Chief of Police or Tactical Sergeant.

N. Officers will not handle firearms in a careless or negligent manner.

O. At the start of a shift, any officer assigned to a patrol unit equipped with a shotgun will inspect the shotgun in his/her unit and verify that it is in good condition, that the bore is free from obstructions and that the weapon is in serviceable condition.

(1) Officers who desire to load the shotgun during their tour of duty may do so, provided that no shell shall be carried in the chamber until it may actually be needed; the shotgun shall be on "safe" and the shotgun will be unloaded when the tour is over.

(2) Under no circumstances will any officer leave the patrol vehicle unlocked with a shotgun or other firearm in it, unless the same is in its locked carrier.

P. Departmentally issued firearms will not be handled by anyone other than departmental personnel.

Q. Each officer is solely responsible for the control and use of his firearm or any assigned to his or her use or care.

R. Departmentally owned firearms will be used only for official police purposes.

S. Only departmentally issued firearms will be carried on duty by uniformed officers unless prior permission is granted by the Chief of Police or Tactical Sergeant.

T. Officers who desire to carry a personally owned firearm on duty must have permission from the Chief of Police and be qualified by the Tactical Sergeant.

(1) No permission will be given in any case for a caliber of less than .357.

(2) To qualify with other than .38 special or .357 magnum, an officer must provide his own practice and duty ammunition.

(3) The cost of holsters and leather goods for carrying nonissued firearms will be borne by the officer.

U. Officers must qualify a minimum of two times per year with firearms.

V. Duty rounds for departmentally issued firearms shall be .357 magnum, or a .38 special +P soft point or controlled expansion rounds.

W. Except for grips, no officer shall alter, cause to be altered or perform any maintenance or repair to his or her firearm without permission of the Chief of Police. This shall not apply to the normal upkeep or cleaning of the firearm.

X. Members must register their personally owned firearms, not listed on a pistol permit, with the Pistol Permit Bureau of New York State through the Chief of Police. In accordance with Article 265 of the New York State Penal Law, any officer must notify the Chief of Police within 10 days of the acquisition or disposal of a personally owned firearm.