Relates to ethnic or racial profiling; prohibits law enforcement agencies and officers from engaging in racial or ethnic profiling.
TITLE OF BILL: An act to amend the executive law, in relation to ethnic or racial profiling
PURPOSE OR GENERAL IDEA OF BILL: 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 PROVISION: 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 7 business days 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 publish an annual report on law enforcement traffic stops without revealing the identity of any individuals.
Subdivision 9. states that inaction 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: Blacks, Hispanics and other minority groups have long been victims of biased and unjustified traffic stops, searches and frisks by law enforcement officers. 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." The use of racial profiling has consequently had a corrosive effect on the relations between police and tile minority communities. This practice deprives minorities of their Fourth Amendment right to he 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.
PRIOR LEGISLATIVE HISTORY: None.
FISCAL IMPLICATIONS: To be determined.
EFFECTIVE DATE: This act shall take effect on the 180th day after becoming a law.
STATE OF NEW YORK ________________________________________________________________________ 1872 2011-2012 Regular Sessions IN SENATE January 13, 2011 ___________Introduced by Sen. ESPAILLAT -- read twice and ordered printed, and when printed to be committed to the Committee on Finance 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 THIRTEEN, 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 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 WRITTENEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06303-01-1 S. 1872 2
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 THIRTEEN, 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 THIRTEEN, 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 SEVEN 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 DATA SYSTEM FOR PUBLIC VIEWING OF SUCH DATA AND SHALL PUBLISH AN ANNUAL REPORT ON DATA COLLECTED FOR THE GOVERNOR, THE LEGISLATURE, AND THES. 1872 3
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 one hundred eightieth day after it shall have become a law; provided, however, that effective immediate- ly, 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.