Prohibits police officers from using racial and ethnic profiling; requires that a procedure be established for the taking and review of complaints against police officers for racial and ethnic profiling; allows an action for injunctive relief and/or damages to be brought against a law enforcement agency.
Sponsor: SAMPSON / Co-sponsor(s): MONTGOMERY, PARKER, PERKINS, RIVERA / Committee: FINANCE
Law Section: Executive Law / Law: Add S837-s, Exec L
Sponsor: SAMPSON / Co-sponsor(s): MONTGOMERY, PARKER, PERKINS, RIVERA / Committee: FINANCE
Law Section: Executive Law / Law: Add S837-s, Exec L
- Jan 25, 2012: PRINT NUMBER 1633A
- Jan 25, 2012: AMEND AND RECOMMIT TO FINANCE
- Jan 4, 2012: REFERRED TO FINANCE
- Jan 10, 2011: REFERRED TO FINANCE
BILL NUMBER:S1633 TITLE OF BILL: An act to amend the executive law, in relation to ethnic or racial profiling PURPOSE OR GENERAL IDEA OF BILL: The proposed legislation prohibits law enforcement officers from using racial and ethnic profiling, establishes a collection of data on traffic stops and creates a cause of action based on racial or ethnic profiling. SUMMARY OF SPECIFIC PROVISIONS: Section 1 - amends the executive law by creating a new section 837-s; Subdivision 1 contains definitions. Subdivision 2 prohibits law enforcement agencies and law enforcement officers from engaging in racial or ethnic profiling. Subdivision 3 requires every law enforcement agency to promulgate and adopt procedures for reviewing complaints of racial or ethnic profiling and taking corrective measures. A copy of each complaint and a written summary of the disposition must be forwarded to the division of criminal justice services. Subdivision 4 requires each law enforcement agency to collect and maintain data with respect to traffic stops and persons patted down, frisked and searched. Subdivision 5 requires every law enforcement agency to compile the data collected and forward an annual report to the division of criminal justice services by March 1st of each year. Subdivision 6 requires the division of criminal justice services in consultation with the Attorney General to promulgate necessary forms. Subdivision 7 requires every law enforcement agency to make documents required by this bill available to the Attorney General within 5 days of a demand. Subdivision 8 requires every law enforcement agency to provide all data collected from traffic stops to the division of criminal justice services. The division shall implement a computerized data system for public viewing of such data and shall publish an annual report on law enforcement. traffic stops without revealing the identity of any individuals. Subdivision 9 states that an action for injunctive relief and/or for damages may be brought by the Attorney General on behalf of the people against a law enforcement agency that has engaged in racial or ethnic profiling. A court may award costs and reasonable attorney fees to a prevailing plaintiff. Subdivision 10 states that an action for injunctive relief and/or for damages may be brought by an individual that has been the subject of racial profiling against a law enforcement agency that has engaged in racial or ethnic profiling. A court may award costs and reasonable attorney fees to a prevailing plaintiff. Subdivision 11 provides that section 837-s does not diminish or abrogate any other right, remedy or cause of action which an individual who has been the subject of racial profiling may have. Section 2 - contains the effective date. JUSTIFICATION: As a part of the national "war on drugs" local enforcement agencies around the country have developed profiles of people they think are most likely to be involved in drug trafficking. The arguably unconstitutional use of race or ethnicity as a criteria has become the focus of many civil and human rights groups. The practice is commonly known as "racial profiling." Many people of color including prominent athletes, members of Congress, actors, lawyers, law enforcement officers and business leaders have experienced the humiliation of being stopped on the nation's roads as a result of this practice. Almost every minority can tell a story about being stopped by the police for no apparent reason other than the color of their skin. In recent years, the number of "traffic stops" where the only apparent reason for stopping the person was their race or ethnicity, has become so prevalent that the minority community has derisively termed it "Driving While Black or Brown" (DWB). Blacks, Hispanics and other minority groups have long been victims of biased and unjustified traffic stops by law enforcement officers. This consequently has had a corrosive effect on the relations between police and the minority communities. As a result of racial profiling, many innocent Black drivers can end up parked on a highway, questioned by law enforcement, while their vehicles and belongings are searched. In a sense, the U.S. Supreme Court established an open season on minority motorists in 1996 when it ruled in Whren v. U.S., 571 U.S. 806 (1996), that police could use any traffic offense as a reason to stop a motorist. Minority motorists can be and are pulled over and detained for the most trivial of traffic offenses which are contained in many cities' vehicle codes. These offenses range from violations of tire depth to the distance in which a motorist must signal before turning. Many of these stops are made upon a selective basis where there is a lot of police discretion. This roadside detention may be used as a pretext for searching the car and its occupants. This practice deprives minority motorists of their Fourth Amendment right to be free from unreasonable searches and seizures, and their right to be free from discriminations based on race guaranteed under the Fourteenth Amendment to the United States Constitution. Cases of racial profiling have steadily increased as the war on drugs has intensified. The all-out battle to keep drug traffickers from transporting illegal substances has unfairly legitimized the practice of racial profiling and the notion of many police officers that Blacks, Hispanics, and other minorities are more likely to possess drugs. Racial profiling has created a system that unfairly infringes on the rights of innocent black and minority motorists. Some of these traffic stops lead to arrests for drug possession or other crimes; however, the concern arises in the number of law-abiding minorities who are stopped on our roads every day so that a few guilty people can be found. The issue of racial profiling has gained national attention as charges of racial profiling have been disclosed to the public. The recent suit of racial profiling tiled against the State of New Jersey (1999), further pushed the issue to the forefront. The complaint filed in the U.S. District Court (United States of America v. State of New Jersey & the Division of State Police of the New Jersey Department of Law and Public Safety: Civil 99-5970 MLC) against the State of New Jersey alleged a pattern or practice of conduct by troopers of the State Police that deprived persons of lights, privileges, or immunities secured or protected by the Constitution and the laws of the United States, including the Fourteenth Amendment and the Omnibus Crime Control and Safe Streets Act. Furthermore, the complainant alleged that this pattern or practice of conduct had been made possible by the failure of the New Jersey State Police to adopt and implement proper management practices and procedures. There has been no systematic effort to either track statistics or establish policy that deals directly with the issues of racial profiling in New York State. In light of these circumstances and as incidences of Racial Profiling continue to occur within the State of New York, it has become paramount for New York to address the issue of racial profiling before it further continues to undermine the collaborative relationship between communities of color and New York law enforcement officers. This legislation aims to resolve the problem by prohibiting police officers from using racial and ethnic profiling, by establishing policies and procedures to collect data on racial and ethnic profiling and by establishing a statewide public data base containing the collected data which will promote law enforcement integrity as well as to promote community support, particularly minority communities, for law enforcement officers. PRIOR LEGISLATIVE HISTORY: S.7554 of 2008 04/11/08 REFERRED TO FINANCE S.65 of 2009 01/07/09 REFERRED TO FINANCE 01/06/10 REFERRED TO FINANCE FISCAL IMPLICATIONS: Related to the promulgation of regulations, the collection of data, the publishing of an annual report and the establishment of the public data base. EFFECTIVE DATE: This act shall take effect on the thirtieth day after is shall have become a law.
S T A T E O F N E W Y O R K
2011-2012 Regular Sessions I N SENATE January 10, 2011
Introduced by Sen. SAMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Finance -- recommitted to the Committee on Finance in accordance with Senate Rule 6, sec. 8 - committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the executive law, in relation to ethnic or racial profiling
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:
Section 1. The executive law is amended by adding a new section 837-s to read as follows:
S 837-S. ETHNIC AND RACIAL PROFILING. 1. FOR THE PURPOSES OF THIS SECTION:
(A) "LAW ENFORCEMENT AGENCY" MEANS AN AGENCY ESTABLISHED BY THE STATE OR A UNIT OF LOCAL GOVERNMENT WHICH EMPLOYS POLICE OFFICERS OR PEACE OFFICERS WHO ARE EMPOWERED TO AND IN THE COURSE OF THEIR OFFICIAL DUTIES LAWFULLY STOP MOTOR VEHICLES OR STOP AND FRISK INDIVIDUALS. (B) "LAW ENFORCEMENT OFFICER" MEANS A POLICE OFFICER OR PEACE OFFICER EMPLOYED BY A LAW ENFORCEMENT AGENCY. (C) "RACIAL OR ETHNIC PROFILING" MEANS THE STOPPING OF A MOTOR VEHI CLE, THE STOPPING AND QUESTIONING OF AN INDIVIDUAL OR THE STOPPING AND FRISKING OF AN INDIVIDUAL BY A LAW ENFORCEMENT OFFICER THAT IS BASED UPON AN INDIVIDUAL'S ACTUAL OR APPARENT RACIAL OR ETHNIC STATUS WITHOUT REASONABLE INDIVIDUALIZED SUSPICION OR CAUSE TO LAWFULLY JUSTIFY SUCH CONDUCT. 2. EVERY LAW ENFORCEMENT AGENCY AND EVERY LAW ENFORCEMENT OFFICER SHALL BE PROHIBITED FROM ENGAGING IN RACIAL OR ETHNIC PROFILING. 3. ON OR BEFORE JANUARY FIRST, TWO THOUSAND FOURTEEN, EVERY LAW ENFORCEMENT AGENCY SHALL PROMULGATE AND ADOPT A WRITTEN POLICY WHICH PROHIBITS RACIAL OR ETHNIC PROFILING. IN ADDITION, EACH SUCH AGENCY SHALL PROMULGATE AND ADOPT PROCEDURES FOR THE REVIEW AND THE TAKING OF EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05856-02-2
S. 1633--A 2 CORRECTIVE ACTION WITH RESPECT TO COMPLAINTS BY INDIVIDUALS WHO ALLEGE THAT THEY HAVE BEEN THE SUBJECT OF RACIAL OR ETHNIC PROFILING. A COPY OF EACH SUCH COMPLAINT RECEIVED PURSUANT TO THIS SECTION AND WRITTEN NOTIFICATION OF THE REVIEW AND DISPOSITION OF SUCH COMPLAINT SHALL BE PROMPTLY PROVIDED BY SUCH AGENCY TO THE DIVISION. 4. COMMENCING ON JANUARY FIRST, TWO THOUSAND FOURTEEN, EACH LAW ENFORCEMENT AGENCY SHALL, USING A FORM TO BE DETERMINED BY THE DIVISION, RECORD AND RETAIN THE FOLLOWING INFORMATION WITH RESPECT TO LAW ENFORCE MENT OFFICERS EMPLOYED BY SUCH AGENCY:
(A) THE NUMBER OF PERSONS STOPPED FOR TRAFFIC VIOLATIONS AND THE NUMBER OF PERSONS PATTED DOWN, FRISKED AND SEARCHED; (B) THE CHARACTERISTICS OF RACE, COLOR, ETHNICITY, GENDER AND AGE OF EACH SUCH PERSON, PROVIDED THE IDENTIFICATION OF SUCH CHARACTERISTICS SHALL BE BASED ON THE OBSERVATION AND PERCEPTION OF THE OFFICER RESPON SIBLE FOR REPORTING THE STOP AND THE INFORMATION SHALL NOT BE REQUIRED TO BE PROVIDED BY THE PERSON STOPPED; (C) IF A VEHICLE WAS STOPPED, THE NUMBER OF INDIVIDUALS IN THE STOPPED MOTOR VEHICLE; (D) WHETHER IMMIGRATION STATUS WAS QUESTIONED, IMMIGRATION DOCUMENTS REQUESTED, AND IF ANY FURTHER INQUIRY WAS MADE TO THE IMMIGRATION AND NATURALIZATION SERVICE WITH RESPECT TO ANY PERSON STOPPED OR IN THE MOTOR VEHICLE; (E) THE NATURE OF THE ALLEGED TRAFFIC VIOLATION THAT RESULTED IN THE STOP OR THE BASIS FOR THE CONDUCT THAT RESULTED IN THE INDIVIDUAL BEING STOPPED AND FRISKED OR SEARCHED; (F) WHETHER A SEARCH WAS CONDUCTED AND, IF SO, THE RESULT OF THE SEARCH; (G) IF A SEARCH WAS CONDUCTED, WHETHER THE SEARCH WAS OF A PERSON OR THE PERSON'S PROPERTY, AND WHETHER THE SEARCH WAS CONDUCTED PURSUANT TO CONSENT AND IF NOT, THE BASIS FOR CONDUCTING THE SEARCH INCLUDING ANY ALLEGED CRIMINAL BEHAVIOR THAT JUSTIFIED THE SEARCH; (H) WHETHER A WARNING OR CITATION WAS ISSUED; (I) WHETHER AN ARREST WAS MADE AND FOR WHAT CHARGE; (J) THE APPROXIMATE DURATION OF THE STOP; AND (K) THE TIME AND LOCATION OF THE STOP. 5. EVERY LAW ENFORCEMENT AGENCY SHALL COMPILE THE INFORMATION SET FORTH IN SUBDIVISION FOUR OF THIS SECTION FOR THE CALENDAR YEAR INTO A REPORT TO THE DIVISION. THE FORMAT OF SUCH REPORT SHALL BE DETERMINED BY THE DIVISION. THE REPORT SHALL BE SUBMITTED TO THE DIVISION NO LATER THAN MARCH FIRST OF THE FOLLOWING CALENDAR YEAR. 6. NOT LATER THAN JANUARY FIRST, TWO THOUSAND FOURTEEN, THE DIVISION, IN CONSULTATION WITH THE ATTORNEY GENERAL, SHALL DEVELOP AND PROMULGATE:
(A) A FORM IN BOTH PRINTED AND ELECTRONIC FORMAT, TO BE USED BY LAW ENFORCEMENT OFFICERS TO RECORD THE INFORMATION LISTED IN SUBDIVISION FOUR OF THIS SECTION WHEN MAKING A TRAFFIC STOP OR WHEN STOPPING AND FRISKING AN INDIVIDUAL; AND (B) A FORM TO BE USED TO REPORT COMPLAINTS PURSUANT TO SUBDIVISION THREE OF THIS SECTION BY INDIVIDUALS WHO BELIEVE THEY HAVE BEEN SUBJECTED TO RACIAL OR ETHNIC PROFILING. 7. EVERY LAW ENFORCEMENT AGENCY SHALL MAKE AVAILABLE TO THE ATTORNEY GENERAL, UPON FIVE DAYS DEMAND AND NOTICE, THE DOCUMENTS REQUIRED TO BE PRODUCED AND PROMULGATED PURSUANT TO SUBDIVISIONS THREE, FOUR AND FIVE OF THIS SECTION. 8. EVERY LAW ENFORCEMENT AGENCY SHALL FURNISH ALL DATA/INFORMATION COLLECTED FROM TRAFFIC STOPS TO THE DIVISION. THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL DEVELOP AND IMPLEMENT A PLAN FOR A COMPUTERIZED S. 1633--A 3 DATA SYSTEM FOR PUBLIC VIEWING OF SUCH DATA AND SHALL PUBLISH AN ANNUAL REPORT ON DATA COLLECTED FOR THE GOVERNOR, THE LEGISLATURE, AND THE PUBLIC ON LAW ENFORCEMENT TRAFFIC STOPS. INFORMATION RELEASED SHALL NOT REVEAL THE IDENTITY OF ANY INDIVIDUAL. 9. THE ATTORNEY GENERAL MAY BRING AN ACTION ON BEHALF OF THE PEOPLE FOR INJUNCTIVE RELIEF AND/OR DAMAGES AGAINST A LAW ENFORCEMENT AGENCY THAT IS ENGAGING IN OR HAS ENGAGED IN
AN ACT OR ACTS OF RACIAL PROFILING IN A COURT HAVING JURISDICTION TO ISSUE SUCH RELIEF. THE COURT MAY AWARD COSTS AND REASONABLE ATTORNEY FEES TO A PLAINTIFF WHO PREVAILS IN SUCH AN ACTION. 10. IN ADDITION TO A CAUSE OF ACTION BROUGHT PURSUANT TO SUBDIVISION NINE OF THIS SECTION, AN INDIVIDUAL WHO HAS BEEN THE SUBJECT OF AN ACT OR ACTS OF RACIAL PROFILING MAY BRING AN ACTION FOR INJUNCTIVE RELIEF AND/OR DAMAGES AGAINST A LAW ENFORCEMENT AGENCY THAT IS ENGAGED IN OR HAS ENGAGED IN
AN ACT OR ACTS OF RACIAL PROFILING. THE COURT MAY AWARD COSTS AND REASONABLE ATTORNEY FEES TO A PLAINTIFF WHO PREVAILS IN SUCH AN ACTION. 11. NOTHING IN THIS SECTION SHALL BE CONSTRUED AS DIMINISHING OR ABRO GATING ANY RIGHT, REMEDY OR CAUSE OF ACTION WHICH AN INDIVIDUAL WHO HAS BEEN SUBJECT TO RACIAL OR ETHNIC PROFILING MAY HAVE PURSUANT TO ANY OTHER PROVISION OF LAW.
S 2. This act shall take effect on the thirtieth day after it shall have become a law; provided, however, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date is authorized and directed to be made and completed on or before such effective date.