Changes to New York’s citizens arrest statute have passed the state Senate, with state Sen. George Borrello joining a larger than normal group of state Senators in opposition.

The Senate this week passed S.167, a bill that would amend the state Criminal Procedure Law and the state Penal Law to abolish citizens arrests. Sponsored by Sen. Michael Gianaris, D-Astoria, S.167 removes references to a person’s ability to use physical force to effect an arrest or escape from custody. A person would only be allowed to use physical force against an individual who is reasonably believed to have a committed a felony and did in fact commit a felony and is in immediate flight from the scene. Deadly physical force would only be allowed in self-defense or to protect another person from the use or imminent use of deadly physical force.

The legislation has passed the Senate in 2021 and 2022 but has never made it through the state Assembly. Given its passage late in the 2023 legislative session, S.167’s passage in the Assembly isn’t guaranteed this year. While not mentioned because the bill was reintroduced much earlier in the session, the controversy over the death of Jordan Neely on a New York City subway looms over the debate over S.167.

Borrello, R-Sunset Bay, debated Gianaris on the Senate floor this week over fears S.167 would deter Good Samaritans from intervening in potential public safety situations because they may not understand the legal language defining a felony crime. Borrello also had concerns that the change may affect how the law views private security in stores and bars because, according to Borrello, store security and private security hired by some businesses are operating under citizens arrest laws.. Gianaris said those concerns are unfounded and that S.167 still allows citizens to act if a felony crime is taking place.

“First of all, that’s not my understanding,” Gianaris said. “So I don’t think your premise is correct. Secondly I will point out that the bill continues to allow someone to use physical force upon another person, when they have reason to believe a felony has been birth committed or a felony was committed to prevent their escape. So, that still allowed. I don’t think a private security person is operating under that section of law anyway. I think that there are other provisions that permit them to do what they can do including detaining people on site but even under this law, a private person would be able to do that.”

Gianaris’ legislative justification cites the 2020 shooting of Ahmaud Arbery in Georgia as a reason to change the law. Two Georgia men and a neighbor armed themselves with guns and used a pickup truck to chase Arbery after he ran past their home after suspecting Arbery was a burglar. Investigators showed he was unarmed and had committed no crimes. More recently, New York City has seen controversy over the death of Jordan Neely, a subway performer with a history of mental illness who was killed May 1. Neely’s death prompted protests, while others embraced Daniel Penny, 24, as a hero for acting in self-defense when he and others felt threatened by Neely’s behavior on a subway.

Assistant District Attorney Joshua Steinglass said Neely had been making threats and “scaring passengers” when Penny approached him from behind and placed him in a chokehold. Penny “continued to hold Mr. Neely in the chokehold for several minutes,” even after he stopped moving, Steinglass said. A freelance journalist who recorded Neely struggling to free himself, then lapsing into unconsciousness, said he had been shouting at passengers and begging for money aboard the train but had not gotten physical with anyone. Penny pinned Neely to the floor of the subway car with the help of two other passengers and held him in a chokehold.

Supporters of S.167 say the latitude provided to private individuals in the administration of criminal justice shows a disregard for the due process rights of other state residents. Georgia repealed its citizens’ arrest laws in 2021 in the wake of Arbery’s death while legislation has been introduced in Florida and South Carolina.

“I think that in general, this does create a situation where people are going to question whether or not they can act as A Good Samaritan and that’s really the important thing here,” Borrello said. “This is taking a long-standing law, changing it, and potentially putting someone in a liablous situation, criminally potentially. So, I think that making this change, whether or not there are good intentions here ultimately could lead to what will be a tragic situation where someone who was on the scene, when a crime is committed, may wish to intervene and then hesitates because of this change to the law so I’ll also be voting no.”