BILL NUMBER: S1473
SPONSOR: BORRELLO
 
TITLE OF BILL:
An act to amend the penal law, the criminal procedure law and the civil
practice law and rules, in relation to the justified use of physical
force
 
PURPOSE OF BILL:
Removes the duty to retreat in scenarios justified under article thir-
ty-five of the penal law and adds protections for the defendant.
 
SUMMARY OF PROVISIONS:
Section 1 provides for the removal of the duty of retreat in places
where the defender is lawfully permitted to be.
Section 2 directs to courts to instruct the jury that the duty of
retreat is no longer a consideration when determining if a person used
the threat of, or actual force against an aggressor,
Section 3 amends the penal law to include a new subdivision that states
that a person who is justified in using force in a self-defense situ-
ation is immune from criminal and civil liability.
Section 4 amends the penal law to state that those who justifiably used
force in a self-defense situation, is not guilty of menacing.
Section 5 allows law enforcement to arrest someone who used force if
there is probable cause to find that the use of force was not justifia-
ble under article thirty-five of the penal law.
Section 6 adds a new subdivision to the criminal procedure law to direct
defenders to state that in the event of an arrest following a self-de-
fense situation, the court shall dismiss the charges following arraign-
ment, unless the court determines by a clear and convincing standard,
that the use of said force was not reasonable.
Section 7 amends the civil practice law to state: that in the event that
a court grants a civil action against an individual who used justifiable
force, the defendant can move for a dismissal in a pre-trial hearing
unless the other party can prove, with clear and convincing evidence,
that the force was not reasonable. Adds that the court shall award
reasonable attorney fees, court costs, and compensation for lost income
and other expenses incurred by a defendant in a civil court action if
the court finds that the defendant's actions were justified.
Section 8 amends the civil practice law by adding a new section that
states that before a civil suit can continue against a defendant, the
plaintiffs counsel shall provide a certificate of merit stating that he
has reviewed the facts of the case and believes that, to the best of his
knowledge, the force used was not justified
Section 9 is the effective date.
 
JUSTIFICATION:
The Second Amendment is designed to allow the people of the United
States to protect themselves. Currently, New York law states that the
duty to retreat is only removed when a person is in their own dwelling.
No New York citizen should have to wait until they or their loved ones
are shot or stabbed before they can defend themselves. Law-abiding citi-
zens should have the right to defend themselves and others, regardless
of their location, when faced with the threat of imminent danger.
Daniel Penny, a Marine veteran, was charged with second-degree
manslaughter and released on bond following the death of Jordan Neely on
May 1, 2023. Neely, who had a criminal history of violence and mental
health issues, boarded a New York City Subway train at the Second Avenue
station and began threatening the passengers and loudly proclaimed that
-he was not afraid of going to prison and was "ready to die," which
caused alarmed.
Witnesses, including freelance journalist Juan Alberto Vazquez, reported
that Neely's behavior was erratic and intimidating. Penny intervened by
putting Neely in a chokehold. Multiple witness accounts from that day
showed gratitude to Daniel Penny for intervening in what could have been
yet another violent attack on innocent victims by Jordan Neely.
Penny's actions were seen by many as a necessary act of self-defense in
a chaotic situation. However, he was later charged with criminally
negligent homicide, sparking a heated debate about the fairness of his
prosecution. Penny was unjustly persecuted for his attempt to protect
fellow passengers.
Even though Daniel Penny has been cleared of criminal charges by a jury,
he still faces the threat of financial ruin with a pending civil trial
brought by Neely's family. Under this proposed legislation, citizens
like Daniel Penny, who are justified in using deadly force to defend
themselves and others, would be immune from criminal and civil liabil-
ity. The bill would remove the duty to retreat in places where the
defender is lawfully permitted to be. It would also direct courts to
instruct juries that the duty to retreat is no longer a consideration
when determining if a person used the threat of force or actual force to
deter an aggressor and prevent injury or death to themselves or others.
 
LEGISLATIVE HISTORY:
2022: Referred to Codes
2019-2020: Referred to Codes
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act will take effect immediately.

Statutes affected:
S1473: 35.05 penal law, 35.10 penal law, 120.14 penal law, 120.14(1) penal law, 140.10 criminal procedure law, 180.10 criminal procedure law