NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A710A
SPONSOR: Hunter (MS) 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 public officials when they deprive the rights of New Yorkers as
well as to provide a state cause of action that may be brought by an
injured individual and/or the Attorney General.
SUMMARY OF PROVISIONS:
Section 1 adds a new section 79-R 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" 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 Subdivision 1 of 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 compe-
tent jurisdiction.
Section 2 is the severability clause.
Section 3 is the effective date.
JUSTIFICATION:
For more than five decades, public officials have had extraordinary
leeway in how they performed their jobs. As we see across America today,
qualified immunity has far too often given the public officials license
to violate a person's civil rights without any form of accountability,
even during the most routine encounters.
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
legal reform, we must continue this progress as our streets have been
filled with massive protests against unaccountable state power. It is
time to untangle the web of misconduct that has been shielded by the
extraordinary protection granted by qualified immunity.
In a 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,
for example, points to the protection that qualified immunity has given
law enforcement even in the most suspect of cases where officers have
acted with impunity.
We must be part of the national movement to stop unaccountable actions
by public officials when they violate our constitutional rights. We have
the opportunity to join other states that have passed laws to hold
public officials accountable for when they violate a person's constitu-
tional rights.
LEGISLATIVE HISTORY:
2019-2020: S.8668-B - Amend and recommit to Rules/A.10978 - Referred to
Governmental Operations.
2021-2022: S.1991 - Referred to Investigations and Government
Operations/A.4331 - Referred to Judiciary
STATE AND LOCAL FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect immediately.
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 Hailey Fuchs, Qualified Immunity Protection for Police Emerges as
Flash Point Amid Protests, N.Y. Times, July 20, 2020,
https://www.nytimes.com/2020/06/23/us/politics/qualified-immunitv.html.
STATE OF NEW YORK
________________________________________________________________________
710--A
2023-2024 Regular Sessions
IN ASSEMBLY
January 11, 2023
___________
Introduced by M. of A. HUNTER, REYES, SIMON, EPSTEIN, CLARK, MITAYNES,
GONZALEZ-ROJAS, ZINERMAN, MAMDANI, BURGOS, RAMOS, FORREST, KELLES,
SEAWRIGHT, JACKSON, BICHOTTE HERMELYN, JEAN-PIERRE, DAVILA, DINOWITZ,
ANDERSON, L. ROSENTHAL, MEEKS, GALLAGHER, KIM, WALKER, CRUZ, HEVESI,
STECK, CARROLL, GLICK, GIBBS, TAYLOR, RIVERA, TAPIA, CUNNINGHAM, COOK,
LUCAS, SHRESTHA, HYNDMAN, ARDILA, RAGA, SIMONE, DE LOS SANTOS, AUBRY,
BORES -- Multi-Sponsored by -- M. of A. PRETLOW -- read once and
referred to the Committee on Judiciary -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
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-r to read as follows:
3 § 79-r. 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01354-03-3
A. 710--A 2
1 whether that change has been implemented as a result of a judgment in
2 such plaintiff's favor. When a judgment is entered in favor of a defend-
3 ant, the court may award reasonable costs and attorney fees to the
4 defendant only for defending any claims the court finds frivolous.
5 2. (a) If a person or public entity acting under color of law that
6 subjects or causes to be subjected any other person to the deprivation
7 of any rights, privileges, or immunities secured by the federal or state
8 Constitution or laws, the attorney general may bring a civil action for
9 legal or equitable relief or other proper redress. The civil action
10 shall be brought in the name of the state and may be brought on behalf
11 of the injured party. A civil action brought by the attorney general
12 shall not foreclose an injured party from bringing their own civil
13 action for legal or equitable relief or other proper redress. A civil
14 action brought by an injured party shall not foreclose the attorney
15 general from bringing a civil action for legal or equitable relief or
16 other proper redress.
17 (b) If the attorney general prevails in an action brought pursuant to
18 this section, the court shall order the distribution of any award of
19 damages to the injured party.
20 3. (a) Statutory immunities and statutory limitations on liability,
21 damages or attorney fees do not apply to claims brought pursuant to this
22 section.
23 (b) It shall not be a defense or immunity to any action brought for
24 the deprivation of any rights, privileges, or immunities secured by the
25 federal or state Constitution and laws, that such defendant was acting
26 in good faith, or that the defendant believed, reasonably or otherwise,
27 that their conduct was lawful at the time such conduct was committed.
28 Nor shall it be a defense or immunity that the rights, privileges, or
29 immunities secured by the federal or state Constitution or laws were not
30 clearly established at the time of their deprivation by the defendant,
31 or that the state of the law was otherwise such that the defendant could
32 not reasonably have been expected to know whether their conduct was
33 lawful.
34 4. A civil action pursuant to this section shall be commenced within
35 three years after the cause of action accrues.
36 5. Notwithstanding any other provision of law, a public entity shall
37 indemnify its public employee for any liability incurred by the employee
38 and for any judgment entered against the employee for claims arising
39 under this section.
40 6. For the purpose of this section, "public entity" shall mean the
41 state, any county, city and county, municipality, and every other poli-
42 tical subdivision of the state; and any private entity that engages in
43 state action.
44 7. The immunity granted pursuant to subdivision one of section twen-
45 ty-four of the correction law shall not extend to actions brought pursu-
46 ant to this section.
47 8. Notwithstanding any other provision of law, including but not
48 limited to subdivision two of section twenty-four of the correction law,
49 actions brought pursuant to this section may be commenced in any court
50 of competent jurisdiction, including the supreme court.
51 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
52 sion, section or part of this act shall be adjudged by any court of
53 competent jurisdiction to be invalid, such judgment shall not affect,
54 impair, or invalidate the remainder thereof, but shall be confined in
55 its operation to the clause, sentence, paragraph, subdivision, section
56 or part thereof directly involved in the controversy in which such judg-
A. 710--A 3
1 ment shall have been rendered. It is hereby declared to be the intent of
2 the legislature that this act would have been enacted even if such
3 invalid provisions had not been included herein.
4 § 3. This act shall take effect immediately.
