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A11013 Summary:

BILL NOA11013A
 
SAME ASSAME AS S08925
 
SPONSORSolages
 
COSPNSRCrespo, Kim, Niou, Barron, Davila, De La Rosa, Dickens, Epstein, Espinal, Fernandez, Hevesi, Hyndman, Jaffee, Jean-Pierre, Lentol, Mosley, O'Donnell, Pichardo, Pretlow, Ramos, Rozic, Seawright, Weprin, Williams, Wright, Lavine, Gottfried, D'Urso, Perry, Joyner, Ortiz, Fahy, Simon, Buchwald, Lifton, Arroyo, Glick, Rosenthal L, Taylor, Bichotte, Peoples-Stokes, Cahill, Cook, Rivera, McDonald, Otis
 
MLTSPNSR
 
Add 28, Civ Rts L; add 4-a, amd 212, Judy L
 
Exempts certain interested parties or people from civil arrest while going to, remaining at, or returning from the place of such court proceeding.
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A11013 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A11013A
 
SPONSOR: Rules (Solages)
  TITLE OF BILL: An act to amend the civil rights law and the judiciary law, in relation to protecting certain interested parties or people from civil arrest while going to, remaining at, or returning from the place of such court proceeding   PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to facilitate continued access to the justice system and courts by all members of the community without fear of immigration-related consequences.   SUMMARY OF PROVISIONS: Section one is the title of the bill. Section two would amend the Civil Rights Law to protect certain persons from civil arrest when going to, remaining at, or returning from a court appearance or proceeding unless a specific judicial warrant or judicial order authorizing such arrest has been issued. This section provides that a civil court action may be brought by the individual or the attor- ney general to address an alleged violation of this provision. This provision is in addition to the general protections from civil arrest found in Article Three of the Civil Rights Law, in any other law, and available under common law. Section three would amend the Judiciary Law to allow courts to issue orders designed to protect the prohibition on such civil arrests. Section four would amend the Judiciary Law to provide that non-local law enforcement officials seeking to enter a courthouse with respect to an alleged violation or violations of federal immigration law would be required to identify themselves and such purpose. Counsel for the unified court system would be required to review any judicial warrant or judicial order presented to assure its authenticity before allowing entry of the officer intending to effect such an immigration-related arrest. Section five contains a severability clause. Section six is the effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): The amended version adds a title. 1   JUSTIFICATION: Article Three of the Civil Rights Law, "Privilege From Arrest," dates back to the early part of the last century. Most of these provisions of the Civil Rights Law were enacted in 1909 (e.g., § 22 ("Privileges of officers and prisoners from arrest while passing through another coun- ty"); § 23 ("No person to be arrested in civil proceedings without asta- tutory provision); § 25 ("Witness exempt from arrest")). While such provisions have been effective to protect the integrity and needs of the court system in certain circumstances, certain modern practices make an updated, supplementary statute necessary. Changes by federal agencies regarding the enforcement of federal immi- gration law have instilled significant fear in immigrant communities across New York State. In particular, the use of court calendars and courthouses as a means of locating allegedly undocumented individuals has soared, leaving many immigrants, documented and undocumented, afraid to access the justice system or respond to court summonses for fear of potentially life-changing immigration-related repercussions. This trend has a potentially damaging impact on all New Yorkers, not just immigrant communities, as the operation of our judicial system and public safety are undermined. Domestic violence victims - whether documented individuals or not - need access to our civil justice system, for orders of protection and similar relief. An entire family may be gravely impacted if a tenant is afraid to enter the courthouse and respond to a landlord's court petition. Justice to other persons is denied when an immigrant - documented or not - refuses to come to court to testify as a victim or witness. It serves neither justice nor public safety when fear of a civil arrest deters a defendant charged with a traffic infraction, or a more serious crime, from attending a scheduled court appearance in the case. According to the Immigrant Defense Project, from 2016 to 2017, arrests by federal Immigration and Customs Enforcement ("ICE") agents at court- houses in New York State increased by 1200%. Fear of being targeted, either due to a lack of legal immigration status or concern about the uncertain status of a family member, have dissuaded many individuals from contacting law enforcement or following through with court proceedings. District attorneys and legal representatives, in New York and elsewhere, have expressed frustration and concern regarding their ability to prosecute cases, as victims and witnesses are sometimes too afraid to attend the proceedings. This inability of law enforcement and the legal community to work effectively with immigrant communities and individuals has potentially severe consequences for public safety, as the justice system is handicapped by the unwillingness of victims, witnesses, tenants and others to come forward and enter the courthouse. As fewer individuals feel safe interacting with the justice system, fearing potential implications for themselves, friends or family, it becomes all the more challenging to promote public safety. It is imper- ative that we ensure that all members of our community feel safe access- ing New York's court system. This bill would make a modest change to clarify and update New York's century-old prohibition on certain courthouse arrests (Civil Rights Law Art. 3). The bill would allow arrest for an immigration offense based on a judicial arrest warrant or judicial order, signed by a judge of anoth- er jurisdiction who is authorized to order such arrest. However, an immigration- related courthouse arrest based on an administrative warrant, or without a warrant, would not be permitted.   PRIOR LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None expected.   EFFECTIVE DATE: This bill would take effect immediately.
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A11013 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                        11013--A
 
                   IN ASSEMBLY
 
                                      May 30, 2018
                                       ___________
 
        Introduced  by  COMMITTEE  ON  RULES -- (at request of M. of A. Solages,
          Crespo, Kim, Niou, Barron, Davila, De La Rosa, Dickens, Epstein, Espi-
          nal, Fernandez, Hevesi, Hyndman, Jaffee, Jean-Pierre, Lentol,  Mosley,
          O'Donnell,   Pichardo,   Pretlow,  Ramos,  Rozic,  Seawright,  Weprin,
          Williams, Wright, Lavine, Gottfried) -- read once and referred to  the
          Committee  on  Codes  --  committee  discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the civil rights law and the judiciary law, in  relation
          to  protecting  certain interested parties or people from civil arrest
          while going to, remaining at, or returning  from  the  place  of  such
          court proceeding
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be cited  as  the  "protect
     2  our courts act".
     3    §  2.  The  civil  rights law is amended by adding a new section 28 to
     4  read as follows:
     5    § 28. Civil arrest; certain locations. 1. A person duly  and  in  good
     6  faith  attending  a  court proceeding in which such person is a party or
     7  potential witness, or a family or household member is a party or  poten-
     8  tial  witness, is privileged from civil arrest while going to, remaining
     9  at, and returning from, the place of such court proceeding, unless  such
    10  civil  arrest  is  supported  by  a  judicial  warrant or judicial order
    11  authorizing such civil arrest.
    12    2. It is a contempt of the court and false imprisonment for any person
    13  to willfully violate subdivision one of this section, or an order of the
    14  court issued pursuant to section four-a of the judiciary law, by execut-
    15  ing an arrest prohibited by subdivision one of this section  or  section
    16  four-a of the judiciary law, or willfully assisting or willfully facili-
    17  tating  an  arrest  prohibited  by  subdivision  one  of this section or
    18  section four-a of the judiciary law; provided, however, that nothing  in
    19  this subdivision shall affect any right or defense of any person, police
    20  officer, peace officer or public officer pursuant to article thirty-five
    21  of the penal law.
    22    3. Regardless of whether a proceeding for contempt of the court pursu-
    23  ant to subdivision two of this section has been initiated:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15571-05-8

        A. 11013--A                         2

     1    (a)  a person described in subdivision one of this section may bring a
     2  civil action for appropriate equitable and declaratory  relief  if  such
     3  person has reasonable cause to believe a violation of subdivision one of
     4  this  section,  as  described  in  subdivision two of this section, or a
     5  violation  of  section  four-a of the judiciary law, has occurred or may
     6  occur; and
     7    (b) the attorney general may bring a civil action in the name  of  the
     8  people  of  the  state  of  New York to obtain appropriate equitable and
     9  declaratory relief if the  attorney  general  has  reasonable  cause  to
    10  believe  that  a  violation  of  subdivision  one  of  this  section, as
    11  described in subdivision two of this section, or a violation of  section
    12  four-a of the judiciary law, has occurred or may occur.
    13    4.  In  any  successful  action  pursuant to subdivision three of this
    14  section, a plaintiff or petitioner  may  recover  costs  and  reasonable
    15  attorney's fees.
    16    5. Nothing in this section shall be construed to narrow, or in any way
    17  lessen,  any  common  law or other right or privilege of a person privi-
    18  leged from arrest pursuant to this article or otherwise.
    19    6. As used in this section:
    20    (a) "civil arrest" shall mean an arrest that is not:
    21    (i) for the sole or primary purpose of preparing the person subject to
    22  such arrest for criminal prosecution, for an alleged  violation  of  the
    23  criminal law of:
    24    (A)  this  state,  or another state, for which a sentence of a term of
    25  imprisonment is authorized by law; or
    26    (B) the United States, for which a sentence of a term of  imprisonment
    27  is  authorized  by  law,  and  for which federal law requires an initial
    28  appearance before a federal judge, federal magistrate or other  judicial
    29  officer, pursuant to the federal rules of criminal procedure that govern
    30  initial appearances; or
    31    (ii) for contempt of the court in which the court proceeding is taking
    32  place or will be taking place;
    33    (b)  "court  proceeding"  shall mean any appearance in a court of this
    34  state before a judge or justice or judicial  magistrate  of  this  state
    35  ordered or scheduled by such judge or justice or judicial magistrate, or
    36  the  filing  of  papers designed to initiate such an appearance before a
    37  judge or justice or judicial magistrate of this state;
    38    (c) "family or household member" shall have the  same  meaning  as  in
    39  subdivision  two  of  section  four  hundred  fifty-nine-a of the social
    40  services law; and
    41    (d) "judicial warrant or judicial order authorizing such civil arrest"
    42  means an arrest warrant or other judicial order, issued by a  magistrate
    43  sitting  in the judicial branch of a local or state government or of the
    44  federal government, authorizing a civil arrest and issued by  the  court
    45  in which proceedings following such arrest will be heard and determined.
    46    §  3. The judiciary law is amended by adding a new section 4-a to read
    47  as follows:
    48    § 4-a. Certain powers of the courts regarding civil arrests. In  order
    49  to  maintain  access  to the court and open judicial proceedings for all
    50  persons in their individual capacity and to  prevent  interference  with
    51  the  needs  of  judicial  administration, a court has the power to issue
    52  appropriate judicial orders to protect the privilege from civil  arrest,
    53  in accordance with article three of the civil rights law.
    54    §  4.  Subdivision 2 of section 212 of the judiciary law is amended by
    55  adding a new paragraph (w) to read as follows:

        A. 11013--A                         3
 
     1    (w) (i) In order to maintain access to the  court  and  open  judicial
     2  proceedings  for all persons in their individual capacity and to prevent
     3  interference with the needs of judicial administration, consistent  with
     4  section  twenty-eight of the civil rights law and section four-a of this
     5  chapter, direct that court personnel responsible for all courthouses and
     6  the  places of all court proceedings in the state shall not allow access
     7  to such courthouses and places of court  proceedings  to  non-local  law
     8  enforcement  personnel  seeking  to enter such locations with respect to
     9  violation or violations of federal immigration law unless presented with
    10  a valid judicial warrant or judicial order, and  designated  counsel  of
    11  the  unified  court  system  has  individually reviewed and confirmed in
    12  writing the authenticity of such judicial  warrant  or  judicial  order.
    13  Non-local  law  enforcement  personnel  seeking to enter such a location
    14  with respect to violation or violations of federal immigration law shall
    15  identify themselves and such purpose, and present such judicial  warrant
    16  or  judicial order to such responsible court personnel when seeking such
    17  access. The chief administrator shall promulgate rules  consistent  with
    18  this subdivision designed to implement the provisions of this paragraph.
    19    (ii)  Such  rules  shall  also  require  that  a copy of each judicial
    20  warrant and   judicial order  reviewed  by  designated  counsel  of  the
    21  unified court system under this paragraph be sent to and maintained in a
    22  central  repository  by  the chief administrator, who shall on an annual
    23  basis compile statistics disaggregated by  county and prepare  a  report
    24  of  such  statistics,  and  also  identify in such report, for each such
    25  judicial warrant and judicial order, the date such judicial  warrant  or
    26  judicial  order  was signed, the judge and court which issued such judi-
    27  cial warrant or judicial order and the location of such court  as  shown
    28  by  such document, the  date such judicial warrant or judicial order was
    29  presented to counsel for the  unified court system, a description of the
    30  type of judicial warrant or judicial order and, to the extent  known  to
    31  court  personnel,  whether  or  not an arrest occurred  and the date and
    32  location of such arrest. Such report, which shall not include the  names
    33  of individuals involved, shall  be  published  on  the  website  of  the
    34  unified  court  system  and  copies  of such report shall be sent to the
    35  governor, the speaker of the assembly and the temporary president of the
    36  senate.
    37    (iii) For purposes  of  this  paragraph,  "non-local  law  enforcement
    38  personnel"  shall mean a person or persons employed or retained by a law
    39  enforcement agency: (A) of a jurisdiction other than the  state  of  New
    40  York or a local government in the state of New York; or (B) of the state
    41  of  New  York or a local government in the state of New York, where such
    42  law enforcement agency or employee or agent thereof has entered into  an
    43  agreement  with  a  federal  law  enforcement  agency, including but not
    44  limited to pursuant to 8 U.S.C. 1373, authorizing it or such  person  to
    45  enforce or assist in the enforcement of federal immigration law.
    46    § 5. Severability clause. If any clause, sentence, paragraph, subdivi-
    47  sion,  section  or  part  of  this act shall be adjudged by any court of
    48  competent jurisdiction to be invalid, such judgment  shall  not  affect,
    49  impair,  or  invalidate  the remainder thereof, but shall be confined in
    50  its operation to the clause, sentence, paragraph,  subdivision,  section
    51  or part thereof directly involved in the controversy in which such judg-
    52  ment shall have been rendered. It is hereby declared to be the intent of
    53  the  legislature  that  this  act  would  have been enacted even if such
    54  invalid provisions had not been included herein.
    55    § 6. This act shall take effect immediately.
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