Permits peace officers and police officers to consider the ethnicity of a person as one of multiple factors to identify a terrorist suspect in furtherance of the government's compelling interest in deterring terrorist attacks.
STATE OF NEW YORK
________________________________________________________________________
5489
2009-2010 Regular Sessions
IN ASSEMBLY
February 13, 2009
___________
Introduced by M. of A. HIKIND -- Multi-Sponsored by -- M. of A. BALL,
BURLING, BUTLER, CALHOUN, ERRIGO, FINCH, FITZPATRICK, KOLB, MAYERSOHN,
MILLER, QUINN, REILICH, TOWNSEND, WALKER -- read once and referred to
the Committee on Governmental Operations
AN ACT to amend the executive law, in relation to potential suspect
terrorist profiles
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings. Whereas the legislature notes that
2 the Supreme Court of the United States has held in Grutter v. Bollinger,
3 539 U.S. 306 (2003), that factors such as race and ethnicity can,
4 consistent with the equal protection clause of the United States Consti-
5 tution, be considered in making governmental decisions provided that:
6 (1) such consideration serves a "compelling governmental interest" and
7 (2) that race or ethnicity is not the only factor to be considered in
8 making the decisions. The judicial opinion in Grutter v. Bollinger
9 involved consideration of race in college admissions, and the Supreme
10 Court held that obtaining a diverse student body is a "compelling state
11 interest" in that context because it produces "substantial, important,
12 and laudable educational benefits ... including cross-racial understand-
13 ing and the breaking down of racial stereotypes."
14 The legislature finds and declares that preventing terrorist attacks
15 on our citizens - including not only possible deaths and injuries, but
16 also crushing economic harm or even chaos - is an even more compelling
17 governmental interest. It also finds and declares that since both law
18 enforcement resources and the time necessary to make an initial decision
19 regarding stopping and questioning are very limited, this compelling
20 governmental interest demands the identification of potential terrorist
21 suspects as effectively and efficiently as possible so that they may be
22 stopped, questioned, frisked, and/or searched.
23 The legislature also finds and declares that experts have suggested
24 that, while no one single factor is definitive, a wide variety of
25 factors such as the following can help identify potential terrorism
26 suspects: wearing heavy clothing in warm weather; carrying a briefcase,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07053-01-9
A. 5489 2
1 duffle bag or backpack with protrusions or visible wires; displaying
2 nervousness and/or inappropriate sweating; an inability or unwillingness
3 to make eye contact; chemical burns on clothing or stains on hands. For
4 this reason, law enforcement personnel are often asked to look for and
5 consider such factors in determining which persons to stop, question,
6 frisk and/or search.
7 The legislature also finds and declares that, as many experts and also
8 the history of modern terrorism has suggested, the race or ethnicity of
9 a person can also be a very important if not crucial factor, along with
10 others, in identifying potential terrorist suspects, and so finds that
11 the use of race or ethnicity serves a compelling governmental interest
12 in helping law enforcement personnel to determine effectively and effi-
13 ciently, along with other factors, which persons to stop, question,
14 frisk and/or search. In this regard the legislature notes that decisions
15 to question or search a suspicious person have only momentary conse-
16 quences for innocent persons - unlike the governmental decisions upheld
17 in Grutter v. Bollinger which have lasting and very significant adverse
18 consequences for applicants who would have been admitted to the college
19 but for the use of race by admissions officers in making admissions
20 decisions. The legislature also notes that race has been used in the
21 past as one criteria law enforcement personnel have used in determining
22 whom to stop, question, frisk and/or search.
23 Therefore, the legislature finds that, in the interest of ensuring the
24 most effective terrorist prevention which meets United States constitu-
25 tional protections, it is necessary to enact a law which will authorize
26 law enforcement personnel to consider race and ethnicity as one of many
27 factors which could be used in identifying persons who can be initially
28 stopped, questioned, frisked and/or searched.
29 § 2. The executive law is amended by adding a new section 837-s to
30 read as follows:
31 § 837-s. Potential terrorist suspect profile. 1. For purposes of this
32 section, "potential terrorist suspect profile" shall mean multiple
33 factors which determine the existence of a reasonable individualized
34 suspicion and/or probable cause and provide cause for a peace officer or
35 police officer to lawfully justify the stopping of a motor vehicle, the
36 stopping and questioning of an individual, and/or the stopping and
37 frisking of an individual, in furtherance of the government's compelling
38 interest in deterring terrorist attacks. One of these factors may be the
39 apparent race or ethnicity of the individual.
40 2. Notwithstanding any state or local law, rule or regulation to the
41 contrary, a peace officer or police officer, as defined in section 1.20
42 of the criminal procedure law, may consider the apparent race or ethnic-
43 ity of a suspect as one of many factors in a potential terrorist suspect
44 profile which he or she could use to identify persons who could be
45 stopped, questioned, frisked and/or searched in furtherance of the
46 government's compelling interest in deterring terrorist attacks;
47 provided, however, apparent race or ethnicity may not be the sole crite-
48 ria utilized for making the decision. Rather, apparent race or ethnicity
49 may be utilized as only one of several factors, and such peace officers
50 or police officers shall engage in a highly individualized, holistic
51 consideration of each person's totality of characteristics and factors
52 in carrying out his or her law enforcement functions, including deter-
53 mining whom to stop, question, frisk and/or search.
54 § 3. This act shall take effect immediately.
