S1633A-2011 Actions

• 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

S1633A-2011 Memo

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.

S1633A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 1633--A
 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.

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