NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10978
SPONSOR: Rules (Hunter) TITLE OF BILL:
An act to amend the civil rights law, in relation to providing a civil
action for deprivation of rights
PURPOSE:
The purpose of this legislation is to end the defense of qualified immu-
nity for law enforcement when they deprive the rights of New Yorkers as
well as provide a state cause of action that may be brought by injured
individuals and the Attorney General.
SUMMARY OF PROVISIONS:
Section 1 adds a new section 79-Q of the Civil Rights Law to end the
defense of qualified immunity for certain defendants acting under color
of law. This section also provides a state cause of action for the
deprivation of rights, privileges, or immunities secured by the federal
or state Constitution or laws. The court shall award reasonable attorney
fees and costs to the prevailing plaintiff, and may award reasonable
costs and attorney fees for a prevailing defendant but only for defend-
ing any claims the court finds frivolous. Additionally, the Attorney
General may bring a civil action for relief on behalf of the state and
the injured party but an action brought by the Attorney General does not
foreclose an injured party from bringing an action. If the Attorney
General prevails, the court shall order any award of damages to the
injured party. Qualified immunity or a defendant's good faith but erro-
neous belief in the lawfulness of their conduct shall not be a defense.
A civil action under this section must commence within three years of
the cause of action. Lastly, a public entity shall indemnify its public
employees for any liability incurred by the employee and for any judg-
ment entered against the employee for claims arising under this section.
A public entity shall not indemnify a public employee if the person was
convicted of a criminal violation for the conduct from which the claim
arises. A "public entity" is the state, any county, city and county,
municipality, and every other political subdivision of the state; and
any private entity that engages in state action. Immunity for
corrections officers under Section 24 of the Correction Law shall not
apply to actions brought pursuant to this section. Actions brought
pursuant to this section may be brought in any court of competent juris-
diction.
Section 2 is the severability clause.
Section 3 is the effective date.
JUSTIFICATION:
For more than five decades, police officers have had extraordinary
leeway in how they performed their jobs. As we see across America today,
qualified immunity has far too often given the police the ability to
brutalize and harm our communities, particularly communities of color,
even during the most routine encounters. From George Floyd's alleged
counterfeit $20 bill to Eric Garner's loose cigarettes to Rayshard Brook
sleeping in his car, issues that should have been calmly addressed have
turned into national symbols of police brutality and institutional
racism.
Qualified immunity was granted to law enforcement by the U.S. Supreme
Court and then further strengthened.(1) As New York State is a leader in
criminal justice reform, we must continue this progress as our streets
have been filled with massive protests against police power and brutali-
ty. It is time to untangle the web of police misconduct that has been
protected by this extraordinary protection given to the police.
In a recent New York Times article, a report was cited by the Mapping
Police Violence organization.(2) Based on their study of data, "of the
1,147 people killed by the police in 2017, officers were charged with a
crime in 13 of those cases, or about one percent." This startling
statistic points to the protection that has given police, even in the
most suspect of cases, where officers have acted with impunity.
We must be part of the national movement to stop these killings and
erase this stain on society's record. Let us join our colleagues in
Colorado, who became the first state to eliminate qualified immunity
this month. Our communities are calling out for action - we must act.
LEGISLATIVE HISTORY:
New bill.
STATE AND LOCAL FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect on the 30th day after it shall have become a
law.
(1) Harlow v. Fitzgerald, 457 U.S. (1982); Malley v. Briggs, 457 U.S.
335 (1986); Anderson v. Creighton, 483 U.S. 635 (1987); Saucier v.
Katz, 533 U.S. 194 (2001); Pearson v. Callahan, 555 U.S. 223 (2009);
Safford v. Redding, 557 U.S. 364 (2009).
(2) https://www.nytimes.com/2020
/06/23/us/politics/qualifiedimmunity.html.
STATE OF NEW YORK
________________________________________________________________________
10978
IN ASSEMBLY
September 9, 2020
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Hunter) --
read once and referred to the Committee on Governmental Operations
AN ACT to amend the civil rights law, in relation to providing a civil
action for deprivation of rights
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The civil rights law is amended by adding a new section
2 79-q to read as follows:
3 § 79-q. Civil action for deprivation of rights. 1. (a) A person or
4 public entity acting under color of law that subjects or causes to be
5 subjected any other person to the deprivation of any rights, privileges,
6 or immunities secured by the federal or state Constitution or laws, is
7 liable to the injured party for legal or equitable relief or any other
8 appropriate relief. For the purposes of this section, a public entity
9 subjects, or causes to be subjected, any person to the deprivation of
10 any rights, privileges, or immunities secured by the federal or state
11 Constitution or laws, by employing any person who violates this section.
12 (b) Notwithstanding any other law to the contrary, in any action
13 brought pursuant to this section or the New York human rights law, a
14 court shall award reasonable attorney fees and costs to a prevailing
15 plaintiff. For the purposes of this section, the term "prevailing"
16 includes a plaintiff whose commencement of litigation has acted as a
17 catalyst to effect change in the defendant's conduct, regardless of
18 whether that change has been implemented as a result of a judgment in
19 such plaintiff's favor. When a judgment is entered in favor of a defend-
20 ant, the court may award reasonable costs and attorney fees to the
21 defendant only for defending any claims the court finds frivolous.
22 2. (a) If a person or public entity acting under color of law that
23 subjects or causes to be subjected any other person to the deprivation
24 of any rights, privileges, or immunities secured by the federal or state
25 Constitution or laws, the attorney general may bring a civil action for
26 legal or equitable relief or other proper redress. The civil action
27 shall be brought in the name of the state and may be brought on behalf
28 of the injured party. A civil action brought by the attorney general
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16774-08-0
A. 10978 2
1 shall not foreclose an injured party from bringing their own civil
2 action for legal or equitable relief or other proper redress. A civil
3 action brought by an injured party shall not foreclose the attorney
4 general from bringing a civil action for legal or equitable relief or
5 other proper redress.
6 (b) If the attorney general prevails in an action brought pursuant to
7 this section, the court shall order the distribution of any award of
8 damages to the injured party.
9 3. (a) Statutory immunities and statutory limitations on liability,
10 damages or attorney fees do not apply to claims brought pursuant to this
11 section.
12 (b) It shall not be a defense or immunity to any action brought for
13 the deprivation of any rights, privileges, or immunities secured by the
14 federal or state Constitution and laws, that such defendant was acting
15 in good faith, or that the defendant believed, reasonably or otherwise,
16 that their conduct was lawful at the time such conduct was committed.
17 Nor shall it be a defense or immunity that the rights, privileges, or
18 immunities secured by the federal or state Constitution or laws were not
19 clearly established at the time of their deprivation by the defendant,
20 or that the state of the law was otherwise such that the defendant could
21 not reasonably have been expected to know whether their conduct was
22 lawful.
23 4. A civil action pursuant to this section shall be commenced within
24 three years after the cause of action accrues.
25 5. Notwithstanding any other provision of law, a public entity shall
26 indemnify its public employee for any liability incurred by the employee
27 and for any judgment entered against the employee for claims arising
28 under this section; except that a public entity shall not indemnify a
29 public employee if the employee was convicted of a criminal violation
30 for the conduct from which the claim arises.
31 6. For the purpose of this section, "public entity" shall mean the
32 state, any county, city and county, municipality, and every other poli-
33 tical subdivision of the state; and any private entity that engages in
34 state action.
35 7. The immunity granted pursuant to subdivision one of section twen-
36 ty-four of the correction law shall not extend to actions brought pursu-
37 ant to this section.
38 8. Notwithstanding any other provision of law, including but not
39 limited to subdivision two of section twenty-four of the correction law,
40 actions brought pursuant to this section may be commenced in any court
41 of competent jurisdiction, including the supreme court.
42 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
43 sion, section or part of this act shall be adjudged by any court of
44 competent jurisdiction to be invalid, such judgment shall not affect,
45 impair, or invalidate the remainder thereof, but shall be confined in
46 its operation to the clause, sentence, paragraph, subdivision, section
47 or part thereof directly involved in the controversy in which such judg-
48 ment shall have been rendered. It is hereby declared to be the intent of
49 the legislature that this act would have been enacted even if such
50 invalid provisions had not been included herein.
51 § 3. This act shall take effect on the thirtieth day after it shall
52 have become a law.
