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, any agent of a law enforcement agency and the supervisor of an agent.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4615A
SPONSOR: Bichotte (MS) 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 stops
and creates a course of action based on racial or ethic profiling.
SUMMARY OF SPECIFIC PROVISIONS:
Section '1 would amend the executive law by creating a new section
837-t; Subdivision one would contain definitions.
Subdivision two would prohibit law enforcement agencies and law enforce-
ment officers from engaging in racial or ethnic profiling.
Subdivision three would require every law enforcement agency to promul-
gate and adopt an anti-racial profiling policy as well as procedures for
reviewing complaints of racial or ethnic profiling. A copy of each
complaint and a written summary of the disposition would be required to
be forwarded to the division of criminal justice services.
Subdivision four would require each law enforcement agency to collect
and maintain data with respect to their civilian interactions while
conducting routine and spontaneous investigatory activities.
Subdivision five would require every law enforcement agency to compile
the data collected and forward an annual report to the division of crim-
inal justice services by March 1st of each year.
Subdivision six would require the division of criminal justice services
in consultation with the Attorney General to promulgate necessary forms
for the police agencies to use in their data collection.
Subdivision seven would require every law enforcement agency to make
documents required by this bill available to the Attorney General upon
notice and demand.
Subdivision eight would require every law enforcement agency to provide
all the collected data required by this proposal be made available to
the division of criminal justice services. The division would then
implement a computerized data system for public viewing of such data and
would publish an annual report on law enforcement stops without reveal-
ing the identity of any individuals.
Subdivisions nine and ten would provide a right of action for injunctive
relief and/or for damages to be brought by a private citizen who has
been the victim of racial profiling or by the Attorney General on behalf
of the people against a law enforcement agency that has engaged in
racial or ethnic profiling. Subdivision eleven would establish that
this section 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:
The unconstitutional use of race or ethnicity as criteria has become the
focus of many civil and human rights groups. The practice is commonly
known as "racial profiling." Blacks, Hispanics, Muslims, and other
minority groups have long been victims of biased and unjustified stops
by law enforcement officers. This consequently has had a corrosive
effect on the relations between police and the minority communities and
is of no benefit in reducing crime. In the first three quarters of 2016
(January - September), New Yorkers were stopped by the police 10,171
times. The demographics of those stopped were as follows: 54 percent
were black (5,401), 29 percent were Latino (2,944), and 10 percent were
white (1,042). Ultimately 76 percent of these stops (7,758) did not
result in an arrest and the individual was innocent. These statistics
show the racial bias inherent in police stops and this practice's ulti-
mate ineffectiveness.
The issue of racial profiling has gained national attention as courts
have recently found law enforcement agencies to be engaging in unconsti-
tutional practices. The Center for Constitutional Rights filed the
federal class action lawsuit Floyd, et al. v. City of New York, et al.
against the City of New York to challenge the New York Police Depart-
merit's practices of racial profiling and unconstitutional stop and
frisks of New York City residents. The named plaintiffs in the case
David Floyd, David Ourlicht, Lalit Clarkson, and Deon Dennis - represent
the thousands of primarily Black and Latino New Yorkers who have been
stopped without any cause on the way to work or home from school, in
front of their house, or just walking down the street. In a historic
ruling on August 12, 2013, following a nine-week trial, a federal judge
found the New York City Police Department liable for a pattern and prac-
tice of racial profiling and unconstitutional stops. Under a new admin-
istration, the City agreed to drop its appeal and begin the joint reme-
dial process ordered by the court.
The Floyd case stems from the landmark racial profiling case, Daniels,
et al. v. City of New York, et al., which led to the disbanding of the
infamous Street Crime Unit and a settlement with the City in 2003. The
Daniels settlement agreement required the NYPD to maintain a written
racial profiling policy that complies with the United States and New
York State constitutions and to provide stop-and-frisk data to CCR on a
quarterly basis from 2003 through 2007.
Despite these significant cases, racial profiling is still a practice
that is rampantly engaged in by law enforcement agencies across the
state. In light of such circumstances, it has become paramount for New
York to address the issue of racial profiling before it further contin-
ues 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, b 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 enforce-
ment integrity as well as to promote community support, particularly
minority communities, for law enforcement officers.
PRIOR LEGISLATIVE HISTORY:
2017-18: A04879; Passed Assembly
2015-2016: A 3949 Passed Assembly
2013-2014: A.2941 Passed Assembly
2011-2012; A.2288 Passed Assembly
2010: A.1676A Passed Assembly
2009 A.1676 Passed Assembly
2007 A.627 Passed Assembly
2005-06 A.2456A Passed Assembly
2003-04 A.11542 Passed Assembly
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 immediately, with subdivision 4 taking effect
in 90 days and subdivision 6 taking effect in 60.
STATE OF NEW YORK
________________________________________________________________________
4615--A
Cal. No. 176
2019-2020 Regular Sessions
IN ASSEMBLY
February 4, 2019
___________
Introduced by M. of A. BICHOTTE, GANTT, MOSLEY, GOTTFRIED, BLAKE, WALK-
ER, COOK, PERRY, PRETLOW, ORTIZ, DINOWITZ, LIFTON, PEOPLES-STOKES,
HEVESI, L. ROSENTHAL, REYES, ZEBROWSKI, BARRETT, WRIGHT -- Multi-Spon-
sored by -- M. of A. CARROLL, RAMOS -- read once and referred to the
Committee on Codes -- ordered to a third reading, amended and ordered
reprinted, retaining its place on the order of third reading
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:
1 Section 1. The executive law is amended by adding a new section 837-u
2 to read as follows:
3 § 837-u. Ethnic and racial profiling. 1. For the purposes of this
4 section:
5 (a) "Law enforcement agency" means an agency established by the state
6 or a unit of local government engaged in the prevention, detection, or
7 investigation of violations of criminal law.
8 (b) "Law enforcement officer" means a police officer or peace officer,
9 as defined in subdivisions thirty-three and thirty-four of section 1.20
10 of the criminal procedure law, employed by a law enforcement agency.
11 (c) "Racial or ethnic profiling" means the practice of a law enforce-
12 ment agent or agency, relying, to any degree, on actual or perceived
13 race, color, ethnicity, national origin or religion in selecting which
14 individual or location to subject to routine or spontaneous investigato-
15 ry activities or in deciding upon the scope and substance of law
16 enforcement activity following the initial investigatory procedure,
17 except when there is trustworthy information, relevant to the locality
18 and timeframe, that links a specific person or location with a partic-
19 ular characteristic described in this paragraph to an identified crimi-
20 nal incident or scheme.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00225-02-0
A. 4615--A 2
1 (d) "Routine or spontaneous investigatory activities" means the
2 following activities by a law enforcement agent:
3 (i) Interviews;
4 (ii) Traffic stops;
5 (iii) Pedestrian stops;
6 (iv) Frisks and other types of body searches;
7 (v) Consensual or nonconsensual searches of persons, property or
8 possessions (including vehicles) of individuals;
9 (vi) Data collection and analysis, assessments and investigations; and
10 (vii) Inspections and interviews.
11 2. Every law enforcement agency and every law enforcement officer
12 shall be prohibited from engaging in racial or ethnic profiling.
13 3. Every law enforcement agency shall promulgate and adopt a written
14 policy which prohibits racial or ethnic profiling. In addition, each
15 such agency shall promulgate and adopt procedures for the review and the
16 taking of corrective action with respect to complaints by individuals
17 who allege that they have been the subject of racial or ethnic profil-
18 ing. A copy of each such complaint received pursuant to this section and
19 written notification of the review and disposition of such complaint
20 shall be promptly provided by such agency to the division.
21 4. Each law enforcement agency shall, using a form to be determined
22 by the division, record and retain the following information with
23 respect to law enforcement officers employed by such agency:
24 (a) the number of persons stopped as a result of a motor vehicle stop
25 for traffic violations and the number of persons stopped as a result of
26 a routine or spontaneous law enforcement activity as defined in this
27 section;
28 (b) the characteristics of race, color, ethnicity, national origin or
29 religion of each such person, provided the identification of such char-
30 acteristics shall be based on the observation and perception of the
31 officer responsible for reporting the stop and the information shall not
32 be required to be provided by the person stopped;
33 (c) if a vehicle was stopped, the number of individuals in the stopped
34 motor vehicle;
35 (d) the nature of the alleged violation that resulted in the stop or
36 the basis for the conduct that resulted in the individual being stopped;
37 (e) whether a pat down or frisk was conducted and, if so, the result
38 of the pat down or frisk;
39 (f) whether a search was conducted and, if so, the result of the
40 search;
41 (g) if a search was conducted, whether the search was of a person, a
42 person's property, and/or a person's vehicle, and whether the search was
43 conducted pursuant to consent and if not, the basis for conducting the
44 search including any alleged criminal behavior that justified the
45 search;
46 (h) whether an inventory search of such person's impounded vehicle was
47 conducted;
48 (i) whether a warning or citation was issued;
49 (j) whether an arrest was made and for what charge or charges;
50 (k) the approximate duration of the stop; and
51 (l) the time and location of the stop.
52 5. Every law enforcement agency shall compile the information set
53 forth in subdivision four of this section for the calendar year into a
54 report to the division. The format of such report shall be determined by
55 the division. The report shall be submitted to the division no later
56 than March first of the following calendar year.
A. 4615--A 3
1 6. The division, in consultation with the attorney general, shall
2 develop and promulgate:
3 (a) A form in both printed and electronic format, to be used by law
4 enforcement officers to record the information listed in subdivision
5 four of this section; and
6 (b) A form to be used to report complaints pursuant to subdivision
7 three of this section by individuals who believe they have been
8 subjected to racial or ethnic profiling.
9 7. Every law enforcement agency shall promptly make available to the
10 attorney general, upon demand and notice, the documents required to be
11 produced and promulgated pursuant to subdivisions three, four and five
12 of this section.
13 8. Every law enforcement agency shall furnish all data/information
14 collected pursuant to subdivision four of this section to the division.
15 The division shall develop and implement a plan for a computerized data
16 system for public viewing of such data and shall publish an annual
17 report on data collected for the governor, the legislature, and the
18 public on law enforcement stops. Information released shall not reveal
19 the identity of any individual.
20 9. The attorney general may bring an action on behalf of the people
21 for injunctive relief and/or damages against a law enforcement agency
22 that is engaging in or has engaged in an act or acts of racial profiling
23 in a court having jurisdiction to issue such relief. The court may award
24 costs and reasonable attorney fees to the attorney general who prevails
25 in such an action.
26 10. In addition to a cause of action brought pursuant to subdivision
27 nine of this section, an individual who has been the subject of an act
28 or acts of racial profiling may bring an action for injunctive relief
29 and/or damages against a law enforcement agency that is engaged in or
30 has engaged in an act or acts of racial profiling. The court may award
31 costs and reasonable attorney fees to a plaintiff who prevails in such
32 an action.
33 11. Nothing in this section shall be construed as diminishing or abro-
34 gating any right, remedy or cause of action which an individual who has
35 been subject to racial or ethnic profiling may have pursuant to any
36 other provision of law.
37 § 2. This act shall take effect immediately; provided that:
38 1. the provisions of subdivision 4 of section 837-u of the executive
39 law as added by section one of this act shall take effect on the nineti-
40 eth day after it shall have become a law; and
41 2. the provisions of subdivision 6 of section 837-u of the executive
42 law as added by section one of this act shall take effect on the sixti-
43 eth day after it shall have become a law.
