LB51 LB51
2021 2021
LEGISLATIVE BILL 51
Approved by the Governor May 25, 2021
Introduced by Lathrop, 12; Pansing Brooks, 28; DeBoer, 10; McCollister, 20.
A BILL FOR AN ACT relating to law enforcement; to amend sections 29-215,
81-1403, 81-1407, 81-1414, 81-1438, 81-1439, 81-1440, and 81-1443, Reissue Revised Statutes of Nebraska, and sections 23-1701.01, 29-2264, 81-1401,
81-1414.07, 81-1456, 81-1457, and 81-2014, Revised Statutes Cumulative Supplement, 2020; to change sheriff requirements; to authorize Class I
railroad police officers and noncertified conditional officers; to define and redefine terms; to change conviction set aside provisions; to change annual and initial training provisions for law enforcement officers; to change membership of and provide powers and duties for the Nebraska Police Standards Advisory Council; to require de-escalation training; to provide for certification of persons certified as law enforcement officers in
other states and change provisions relating to law enforcement officer certification; to require psychological evaluations of law enforcement officers as prescribed; to change continuing education requirements for law enforcement officers; to provide for policies and requirements for investigating law enforcement officer misconduct; to change law enforcement officer certification revocation and suspension record provisions; to provide duties for the Nebraska Commission on Law Enforcement and Criminal Justice; to prohibit chokeholds and carotid holds as prescribed; to require policies on excessive force and a duty to
intervene; to require accreditation of law enforcement agencies; to create
a fund; to require posting of certain law enforcement officer information as prescribed; to change provisions relating to law enforcement reserve forces; to harmonize provisions; and to repeal the original sections.
Be it enacted by the people of the State of Nebraska,
Section 1. Section 23-1701.01, Revised Statutes Cumulative Supplement,
2020, is amended to read:
23-1701.01 (1) Any candidate for the office of sheriff who does not have a law enforcement officer certificate or diploma issued by the Nebraska Commission on Law Enforcement and Criminal Justice shall submit with the candidate filing form required by section 32-607 a standardized letter issued by the director of the Nebraska Law Enforcement Training Center certifying that the candidate has:
(a) Within one calendar year prior to the deadline for filing the candidate filing form, passed a background investigation performed by the Nebraska Law Enforcement Training Center based on a check of his or her criminal history record information maintained by the Federal Bureau of
Investigation through the Nebraska State Patrol. The candidate who has not passed a background investigation shall apply for the background investigation at least thirty days prior to the filing deadline for the candidate filing form; and
(b) Received a minimum combined score on the reading comprehension and English language portions of an adult basic education examination designated by
the Nebraska Law Enforcement Training Center.
(2) Each sheriff shall attend the Nebraska Law Enforcement Training Center and receive a certificate attesting to satisfactory completion of the Sheriff's Certification Course within eight months after taking office unless such sheriff has already been awarded a certificate by the Nebraska Commission on
Law Enforcement and Criminal Justice attesting to satisfactory completion of
such course or unless such sheriff can demonstrate to the Nebraska Police Standards Advisory Council that his or her previous training and education is
such that he or she will professionally discharge the duties of the office. Any sheriff in office prior to July 19, 1980, shall not be required to obtain a certificate attesting to satisfactory completion of the Sheriff's Certification Course but shall otherwise be subject to this section.
(3) Each Notwithstanding sections 81-1401 to 81-1414.10, each sheriff shall attend twenty hours of continuing education as provided in section
81-1414.07 in criminal justice and law enforcement courses and at least two hours of anti-bias and implicit bias training designed to minimize apparent or
actual racial profiling approved by the council each year following the first year of such sheriff's term of office. Such continuing education shall be
offered through seminars, advanced education which may include college or
university classes, conferences, instruction conducted within the sheriff's office, or instruction conducted over the Internet, except that instruction conducted over the Internet shall be limited to ten hours annually, and shall be of a type which has application to and seeks to maintain and improve the skills of the sheriffs in carrying out the responsibilities of their office.
(4) Unless (3) Notwithstanding section 81-1403, unless a sheriff is able to show good cause for not complying with subsection (2) or (3) of this section or obtains a waiver of the training requirements from the council, any sheriff who violates subsection (2) or (3) of this section shall be punished by a fine equal to such sheriff's monthly salary. Each month in which such violation
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occurs shall constitute a separate offense.
Sec. 2. Section 29-215, Reissue Revised Statutes of Nebraska, is amended to read:
29-215 (1) A law enforcement officer has the power and authority to
enforce the laws of this state and of the political subdivision which employs the law enforcement officer or otherwise perform the functions of that office anywhere within his or her primary jurisdiction.
(2) Any law enforcement officer who is within this state, but beyond his or her primary jurisdiction, has the power and authority to enforce the laws of
this state or any legal ordinance of any city or incorporated village or
otherwise perform the functions of his or her office, including the authority to arrest and detain suspects, as if enforcing the laws or performing the functions within his or her primary jurisdiction in the following cases:
(a) Any such law enforcement officer, if in a fresh attempt to apprehend a person suspected of committing a felony, may follow such person into any other jurisdiction in this state and there arrest and detain such person and return such person to the law enforcement officer's primary jurisdiction;
(b) Any such law enforcement officer, if in a fresh attempt to apprehend a person suspected of committing a misdemeanor or a traffic infraction, may follow such person anywhere in an area within twenty-five miles of the boundaries of the law enforcement officer's primary jurisdiction and there arrest and detain such person and return such person to the law enforcement officer's primary jurisdiction;
(c) Any such law enforcement officer shall have such enforcement and arrest and detention authority when responding to a call in which a local,
state, or federal law enforcement officer is in need of assistance. A law enforcement officer in need of assistance shall mean (i) a law enforcement officer whose life is in danger or (ii) a law enforcement officer who needs assistance in making an arrest and the suspect (A) will not be apprehended unless immediately arrested, (B) may cause injury to himself or herself or
others or damage to property unless immediately arrested, or (C) may destroy or
conceal evidence of the commission of a crime; and
(d) Any municipality or county may, under the provisions of the Interlocal Cooperation Act or the Joint Public Agency Act, enter into a contract with any other municipality or county for law enforcement services or joint law enforcement services. Under such an agreement, law enforcement personnel may have such enforcement authority within the jurisdiction of each of the participating political subdivisions if provided for in the agreement. Unless otherwise provided in the agreement, each participating political subdivision shall provide liability insurance coverage for its own law enforcement personnel as provided in section 13-1802.
(3) When probable cause exists to believe that a person is operating or in the actual physical control of any motor vehicle, motorboat, personal watercraft, or aircraft while under the influence of alcoholic liquor or of any drug or otherwise in violation of section 28-1465, 28-1466, 28-1472,
37-1254.01, 37-1254.02, 60-4,163, 60-4,164, 60-6,196, 60-6,197, 60-6,211.01, or
60-6,211.02, the law enforcement officer has the power and authority to do any of the following or any combination thereof:
(a) Transport such person to a facility outside of the law enforcement officer's primary jurisdiction for appropriate chemical testing of the person;
(b) Administer outside of the law enforcement officer's primary jurisdiction any post-arrest test advisement to the person; or
(c) With respect to such person, perform other procedures or functions outside of the law enforcement officer's primary jurisdiction which are directly and solely related to enforcing the laws that concern a person operating or being in the actual physical control of any motor vehicle,
motorboat, personal watercraft, or aircraft while under the influence of
alcoholic liquor or of any other drug or otherwise in violation of section
28-1465, 28-1466, 28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164,
60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02.
(4) For purposes of this section:
(a) Class I railroad has the same meaning as in section 81-1401;
(b) (a) Law enforcement officer has the same meaning as peace officer as
defined in section 49-801 and also includes conservation officers of the Game and Parks Commission and Class I railroad police officers; and
(c) (b) Primary jurisdiction means the geographic area within the territorial limits of the state or political subdivision which employs the law enforcement officer.
Sec. 3. Section 29-2264, Revised Statutes Cumulative Supplement, 2020, is amended to read:
29-2264 (1) Whenever any person is placed on probation by a court and satisfactorily completes the conditions of his or her probation for the entire period or is discharged from probation prior to the termination of the period of probation, the sentencing court shall issue an order releasing the offender from probation. Such order in all felony cases shall provide notice that the person's voting rights are restored two years after completion of probation.
The order shall include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.
(2) Whenever any person is convicted of an offense and is placed on
probation by the court, is sentenced to a fine only, or is sentenced to
community service, he or she may, after satisfactory fulfillment of the conditions of probation for the entire period or after discharge from probation prior to the termination of the period of probation and after payment of any
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fine and completion of any community service, petition the sentencing court to
set aside the conviction.
(3)(a) Except as provided in subdivision (3)(b) of this section, whenever any person is convicted of an offense and is sentenced other than as provided in subsection (2) of this section, but is not sentenced to a term of
imprisonment of more than one year, such person may, after completion of his or
her sentence, petition the sentencing court to set aside the conviction.
(b) A petition under subdivision (3)(a) of this section shall be denied if
filed:
(i) By any person with a criminal charge pending in any court in the United States or in any other country;
(ii) During any period in which the person is required to register under the Sex Offender Registration Act;
(iii) For any misdemeanor or felony motor vehicle offense under section
28-306 or the Nebraska Rules of the Road; or
(iv) Within two years after a denial of a petition to set aside a conviction under this subsection.
(4) In determining whether to set aside the conviction, the court shall consider:
(a) The behavior of the offender after sentencing;
(b) The likelihood that the offender will not engage in further criminal activity; and
(c) Any other information the court considers relevant.
(5) The court may grant the offender's petition and issue an order setting aside the conviction when in the opinion of the court the order will be in the best interest of the offender and consistent with the public welfare. The order shall:
(a) Nullify the conviction;
(b) Remove all civil disabilities and disqualifications imposed as a result of the conviction; and
(c) Notify the offender that he or she should consult with an attorney regarding the effect of the order, if any, on the offender's ability to possess
a firearm under state or federal law.
(6) The setting aside of a conviction in accordance with the Nebraska Probation Administration Act shall not:
(a) Require the reinstatement of any office, employment, or position which was previously held and lost or forfeited as a result of the conviction;
(b) Preclude proof of a plea of guilty whenever such plea is relevant to
the determination of an issue involving the rights or liabilities of someone other than the offender;
(c) Preclude proof of the conviction as evidence of the commission of the offense whenever the fact of its commission is relevant for the purpose of
impeaching the offender as a witness, except that the order setting aside the conviction may be introduced in evidence;
(d) Preclude use of the conviction for the purpose of determining sentence on any subsequent conviction of a criminal offense;
(e) Preclude the proof of the conviction as evidence of the commission of
the offense in the event an offender is charged with a subsequent offense and the penalty provided by law is increased if the prior conviction is proved;
(f) Preclude the proof of the conviction to determine whether an offender is eligible to have a subsequent conviction set aside in accordance with the Nebraska Probation Administration Act;
(g) Preclude use of the conviction as evidence of commission of the offense for purposes of determining whether an application filed or a license issued under sections 71-1901 to 71-1906.01, the Child Care Licensing Act, or the Children's Residential Facilities and Placing Licensure Act or a certificate issued under sections 79-806 to 79-815 should be denied, suspended,
or revoked;
(h) Preclude use of the conviction as evidence of serious misconduct or
incompetence, neglect of duty, physical, mental, or emotional incapacity, or final conviction of or pleading guilty or nolo contendere to a felony or
misdemeanor for purposes of determining whether an application filed or a certificate issued under sections 81-1401 to 81-1414.10 and sections 7, 9 to
11, and 13 to 18 of this act should be denied, suspended, or revoked;
(i) Preclude proof of the conviction as evidence whenever the fact of the conviction is relevant to a determination of the registration period under section 29-4005;
(j) Relieve a person who is convicted of an offense for which registration is required under the Sex Offender Registration Act of the duty to register and to comply with the terms of the act;
(k) Preclude use of the conviction for purposes of section 28-1206;
(l) Affect the right of a victim of a crime to prosecute or defend a civil action;
(m) Affect the assessment or accumulation of points under section
60-4,182; or
(n) Affect eligibility for, or obligations relating to, a commercial driver's license.
(7) For purposes of this section, offense means any violation of the criminal laws of this state or any political subdivision of this state including, but not limited to, any felony, misdemeanor, infraction, traffic infraction, violation of a city or village ordinance, or violation of a county resolution.
(8) Except as otherwise provided for the notice in subsection (1) of this
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section, changes made to this section by Laws 2005, LB 713, shall be
retroactive in application and shall apply to all persons, otherwise eligible in accordance with the provisions of this section, whether convicted prior to,
on, or subsequent to September 4, 2005.
(9) The changes made to this section by Laws 2018, LB146, and Laws 2020,
LB881, shall apply to all persons otherwise eligible under this section,
without regard to the date of the conviction sought to be set aside.
Sec. 4. Section 81-1401, Revised Statutes Cumulative Supplement, 2020, is amended to read:
81-1401 For purposes of sections 81-1401 to 81-1414.10 and sections 7, 9
to 11, and 13 to 18 of this act, unless the context otherwise requires:
(1) Class I railroad means a rail carrier classified as Class I pursuant to 49 C.F.R. part 1201 1-1;
(2) (1) Commission means the Nebraska Commission on Law Enforcement and Criminal Justice;
(3) (2) Council means the Nebraska Police Standards Advisory Council;
(4) (3) Director means the director of the Nebraska Law Enforcement Training Center;
(5) (4) Felony means a crime punishable by imprisonment for a term of more than one year or a crime committed outside of Nebraska which would be
punishable by imprisonment for a term of more than one year if committed in
Nebraska;
(6) (5) Handgun means any firearm with a barrel less than sixteen inches in length or any firearm designed to be held and fired by the use of a single hand;
(6) Incapacity means incapable of or lacking the ability to perform or
carry out the usual duties of a law enforcement officer in accordance with the standards established by the commission due to physical, mental, or emotional factors. Incapacity does not exist if a law enforcement officer remains employed as a law enforcement officer, including employment as a law enforcement officer in a restricted or limited-duty status;
(7) Law enforcement agency means the police department or the town marshal in incorporated municipalities, the office of sheriff in unincorporated areas,
and the N