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STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
SENATE BILL 1090 By: Paxton
AS INTRODUCED
An Act relating to appeal of criminal prosecu tions;
amending 21 O.S. 2021, Section 732 , which relates to
justifiable homicide by officer; clarifying immunity
provision for persons asserting certain claim;
authorizing defendant to file motion to dismiss
charges under certain circumstances; granting
defendant the right to file certain interlo cutory
appeal; establishing procedures for certain appeal
hearing; defining term; amending 22 O.S. 2021,
Section 1053, as amended by Section 2, Chapter 209,
O.S.L. 2022 (22 O.S. Supp. 2022, Section 1053), which
relates to appeals taken by the state or
municipality; authorizing appeals by state or
municipalities under certain circumstances ; and
providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 21 O.S. 2021, Section 732, is
amended to read as follows:
Section 732. A. A peace officer, correctional officer, or any
person acting by his command in his aid and assistance, is justified
in using deadly force when:
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1. The officer is acting in obedience to and in accordance with
any judgment of a competent court in executi ng a penalty of death;
or
2. In effecting an arrest or preventing an escape from custody
following arrest and the officer r easonably believes both that:
a. such force is necessary to prevent the arrest fro m
being defeated by resistance or escape, and
b. there is probable cause to believe that the person to
be arrested has committed a crime involving the
infliction or threatene d infliction of serious bodily
harm, or the person to be arrested is attempting to
escape by use of a deadly weapon, or otherwise
indicates that he will endanger human life or inflict
great bodily harm unless arrested without delay; or
3. The officer is i n the performance of his legal duty or the
execution of legal process and reasonab ly believes the use of the
force is necessary to p rotect himself or others from the infliction
of serious bodily harm; or
4. The force is necessary to prevent an escape from a penal
institution or other place of confinement used primarily for the
custody of persons convicted of felonies or from custody w hile in
transit thereto or therefrom unless the officer has reason to know:
a. the person escaping is not a person who has c ommitted
a felony involving violence, and
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b. the person escaping is not likely to endanger human
life or to inflict serious bodily h arm if not
apprehended.
B. 1. An officer who uses deadly force shall not be subject to
criminal prosecution or civil acti on for the use of such deadly
force unless the deadly force is determined to be unl awful.
2. At least ten (10) days prior to the preliminary hearing in a
case where an officer has been charged and is subject to criminal
prosecution for the unlawful use of deadly force, the officer may
file a motion to dismiss the charges based on a claim that under the
provisions of this section, the officer is not subject to criminal
prosecution. If the court denies the motion to dismiss, the officer
shall have the right to file an interlocutory appeal on the ruling
made by the court to the district or associate district court judge
having jurisdiction over the case.
3. The appeal hearing before the district or associate district
court judge shall address whether the deadly force used by the
officer was unlawful or justified and permitted pursuant to t he
provisions of this section. If, after the appeal hearing, the
district or associate district court judge concludes that the de adly
force used was justified and permitted under the provisions of this
section, the judge shall enter a written order containing findings
of fact and conclusions of law that the officer is not subject to
criminal prosecution and that criminal charges and proceedings shall
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be dismissed and shall not be filed unless newly discovered evidence
or evidence not known to the prosecuti on at the time is found or
discovered. If, after the appeal hearing, the district or associate
district court judge concludes that the deadly force used was not
justified and therefore unlawful, the judge shall enter an order
binding the officer over for trial.
4. As used in this subsection, the term “criminal prosecution”
includes charging or prosecuting the defendant.
SECTION 2. AMENDATORY 22 O.S. 2021, Section 1053, as
amended by Section 2, Chapter 209, O.S.L. 2022 (22 O.S. Su pp. 2022,
Section 1053), is amended to read as fol lows:
Section 1053. Appeals to the Court of Criminal Appeals may be
taken by the state or a municipality in the fo llowing cases only:
1. Upon judgment for the defendant on quashing or setting aside
an indictment or information;
2. Upon an order of the c ourt arresting the judgment;
3. Upon a question reserved by the state or a municipality;
4. Upon judgment for the defendant on a motion to quash for
insufficient evidence in a felony matter;
5. Upon a pretrial order, decision, or judgment suppressing or
excluding evidence where appellate revie w of the issue would be in
the best interests of justice ;
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6. Upon a pretrial order, decision or judgment suppressing or
excluding evidence in cases alleg ing violation of any provisions of
Section 13.1 of Title 21 of the Oklahoma Statutes ; and
7. Upon a pretrial order, decision, or judgment finding that a
defendant is not subje ct to criminal prosecution under the
provisions of Section 732 of Title 22 of the Oklahoma Statutes; and
8. Upon an order, decision or judgment finding that a defendant
is immune from or not subject to criminal prosecution.
Priority shall be given to appeals taken pursuant to para graph
5, 6, or 7, or 8 of this section, and an order staying proceedings
shall be entered pending the outcome of the appeal.
SECTION 3. This act shall become effective November 1, 2023.
59-1-1546 TEK 1/19/2023 2:23:12 PM