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: A3949
SPONSOR: Wright (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 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-r;
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 main-
tain 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 individ-
uals.
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 casts 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-r 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 unconstitu-
tional 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 busi-
ness leaders have experienced the humiliation of being stopped on the
nations 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" (DNB).
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 1956 when it ruled in Whren v. U.S., 571 U.S. 896 (1996),
that police could use any traffic offense as a reason to stop a motor-
ist. 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 search-
ing 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 trans-
porting 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 charge of
racial profiling have been disclosed to the public. The recent suit of
racial profiling filed 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 4 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 rights, privileges, or immunities secured or
protected by the Constitution and the laws of the United States, includ-
ing 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 collabora-
tive relationship between communities of color and New York law enforce-
ment officers. This legislation aims to resolve the problem by prohibit-
ing 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 integ-
rity as well as to promote community support, particularly minority
communities, for law enforcement officers.
PRIOR LEGISLATIVE HISTORY:
2031-2014: A2941
2011-2012; A.2288
2010: A.1676A
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 within 30 days
STATE OF NEW YORK
________________________________________________________________________
3949
2015-2016 Regular Sessions
IN ASSEMBLY
January 28, 2015
___________
Introduced by M. of A. WRIGHT, ROBINSON, GANTT, MOSLEY, JAFFEE, TITUS --
Multi-Sponsored by -- M. of A. BRENNAN, CLARK, FARRELL, HEASTIE, HOOP-
ER, PEOPLES-STOKES, SCARBOROUGH, TITONE -- read once and referred to
the Committee on Codes
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-s
2 to read as follows:
3 § 837-s. 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 which employs police officers or peace
7 officers who are empowered to and in the course of their official duties
8 lawfully stop motor vehicles or stop and frisk individuals.
9 (b) "Law enforcement officer" means a police officer or peace officer
10 employed by a law enforcement agency.
11 (c) "Racial or ethnic profiling" means the stopping of a motor vehi-
12 cle, the stopping and questioning of an individual or the stopping and
13 frisking of an individual by a law enforcement officer that is based
14 upon an individual's actual or apparent racial or ethnic status without
15 reasonable individualized suspicion or cause to lawfully justify such
16 conduct.
17 2. Every law enforcement agency and every law enforcement officer
18 shall be prohibited from engaging in racial or ethnic profiling.
19 3. On or before January first, two thousand eighteen, every law
20 enforcement agency shall promulgate and adopt a written policy which
21 prohibits racial or ethnic profiling. In addition, each such agency
22 shall promulgate and adopt procedures for the review and the taking of
23 corrective action with respect to complaints by individuals who allege
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05398-01-5
A. 3949 2
1 that they have been the subject of racial or ethnic profiling. A copy of
2 each such complaint received pursuant to this section and written
3 notification of the review and disposition of such complaint shall be
4 promptly provided by such agency to the division.
5 4. Commencing on January first, two thousand eighteen, each law
6 enforcement agency shall, using a form to be determined by the division,
7 record and retain the following information with respect to law enforce-
8 ment officers employed by such agency:
9 (a) the number of persons stopped for traffic violations and the
10 number of persons stopped where such stop resulted in a person being
11 patted down, frisked and/or searched;
12 (b) the characteristics of race, color, ethnicity, gender and age of
13 each such person, provided the identification of such characteristics
14 shall be based on the observation and perception of the officer respon-
15 sible for reporting the stop and the information shall not be required
16 to be provided by the person stopped;
17 (c) if a vehicle was stopped, the number of individuals in the stopped
18 motor vehicle;
19 (d) whether immigration status was questioned, immigration documents
20 requested, and if any further inquiry was made to the Immigration and
21 Naturalization Service with respect to any person stopped or in the
22 motor vehicle;
23 (e) the nature of the alleged traffic violation that resulted in the
24 stop or the basis for the conduct that resulted in the individual being
25 stopped and patted down, frisked and/or searched;
26 (f) whether a pat down or frisk was conducted and, if so, the result
27 of the pat down or frisk;
28 (g) whether a search was conducted and, if so, the result of the
29 search;
30 (h) if a search was conducted, whether the search was of a person, a
31 person's property, and/or a person's vehicle, and whether the search was
32 conducted pursuant to consent and if not, the basis for conducting the
33 search including any alleged criminal behavior that justified the
34 search;
35 (i) whether an inventory search of such person's impounded vehicle was
36 conducted;
37 (j) whether a warning or citation was issued;
38 (k) whether an arrest was made and for what charge or charges;
39 (l) the approximate duration of the stop; and
40 (m) the time and location of the stop.
41 5. Every law enforcement agency shall compile the information set
42 forth in subdivision four of this section for the calendar year into a
43 report to the division. The format of such report shall be determined by
44 the division. The report shall be submitted to the division no later
45 than March first of the following calendar year.
46 6. Not later than January first, two thousand eighteen, the division,
47 in consultation with the attorney general, shall develop and promulgate:
48 (a) A form in both printed and electronic format, to be used by law
49 enforcement officers to record the information listed in subdivision
50 four of this section when making a traffic stop or when stopping and
51 frisking an individual; and
52 (b) A form to be used to report complaints pursuant to subdivision
53 three of this section by individuals who believe they have been
54 subjected to racial or ethnic profiling.
55 7. Every law enforcement agency shall make available to the attorney
56 general, upon five days demand and notice, the documents required to be
A. 3949 3
1 produced and promulgated pursuant to subdivisions three, four and five
2 of this section.
3 8. Every law enforcement agency shall furnish all data/information
4 collected from traffic stops to the division. The division shall devel-
5 op and implement a plan for a computerized data system for public view-
6 ing of such data and shall publish an annual report on data collected
7 for the governor, the legislature, and the public on law enforcement
8 traffic stops. Information released shall not reveal the identity of any
9 individual.
10 9. The attorney general may bring an action on behalf of the people
11 for injunctive relief and/or damages against a law enforcement agency
12 that is engaging in or has engaged in an act or acts of racial profiling
13 in a court having jurisdiction to issue such relief. The court may award
14 costs and reasonable attorney fees to a plaintiff who prevails in such
15 an action.
16 10. In addition to a cause of action brought pursuant to subdivision
17 nine of this section, an individual who has been the subject of an act
18 or acts of racial profiling may bring an action for injunctive relief
19 and/or damages against a law enforcement agency that is engaged in or
20 has engaged in an act or acts of racial profiling. The court may award
21 costs and reasonable attorney fees to a plaintiff who prevails in such
22 an action.
23 11. Nothing in this section shall be construed as diminishing or abro-
24 gating any right, remedy or cause of action which an individual who has
25 been subject to racial or ethnic profiling may have pursuant to any
26 other provision of law.
27 § 2. This act shall take effect on the thirtieth day after it shall
28 have become a law; provided, however, that effective immediately, the
29 addition, amendment and/or repeal of any rule or regulation necessary
30 for the implementation of this act on its effective date is authorized
31 and directed to be made and completed on or before such effective date.
