NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2176A
SPONSOR: Solages TITLE OF BILL:
An act to amend the civil rights law and the judiciary law, in relation
to protecting certain interested parties or people from civil arrest
while going to, remaining at, or returning from the place of such court
proceeding
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to facilitate continued access to the
justice system and courts by all members of the community without fear
of immigration-related consequences.
SUMMARY OF PROVISIONS:
Section one is the title of the bill.
Section two would amend the Civil Rights Law to protect certain persons
from civil arrest when going to, remaining at, or returning from a court
appearance or proceeding unless a specific judicial warrant or judicial
order authorizing such arrest has been issued. This section provides
that a civil court action may be brought by the individual or the attor-
ney general to address an alleged violation of this provision. This
provision is in addition to the general protections from civil arrest
found in Article Three of the Civil Rights Law, in any other law, and
available under common law.
Section three would amend the Judiciary Law to allow courts to issue
orders designed to protect the prohibition on such civil arrests.
Section four would amend the Judiciary Law to provide that non-local law
enforcement officials seeking to enter a courthouse with respect to an
alleged violation or violations of federal immigration law would be
required to identify themselves and such purpose. Counsel for the
unified court system would be required to review any judicial warrant or
judicial order presented to assure its authenticity before allowing
entry of the officer intending to effect such an immigration-related
arrest.
Section five contains a severability clause.
Section six is the effective date.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
The amended version adds a title.
JUSTIFICATION:
Article Three of the Civil Rights Law, "Privilege From Arrest," dates
back to the early part of the last century. Most of these provisions of
the Civil Rights Law were enacted in 1909 (e.g., § 22 ("Privileges of
officers and prisoners from arrest while passing through another coun-
ty"); § 23 ("No person to be arrested in civil proceedings without a
statutory provision); § 25 ("Witness exempt from arrest")). While such
provisions have been effective to protect the integrity and needs of the
court system in certain circumstances, certain modern practices make an
updated, supplementary statute necessary. Changes by federal agencies
regarding the enforcement of federal immigration law have instilled
significant fear in immigrant communities across New York State. In
particular, the use of court calendars and courthouses as a means of
locating allegedly undocumented individuals has soared, leaving many
immigrants, documented and undocumented, afraid to access the justice
system or respond to court summonses for fear of potentially life-chang-
ing immigration-related repercussions. This trend has a potentially
damaging impact on all New Yorkers, not just immigrant communities, as
the operation of our judicial system and public safety are undermined.
Domestic violence victims - whether documented individuals or not - need
access to our civil justice system, for orders of protection and similar
relief. An entire family may be gravely impacted if a tenant is afraid
to enter the courthouse and respond to a landlord's court petition.
Justice to other persons is denied when an immigrant - documented or not
- refuses to come to court to testify as a victim or witness. It serves
neither justice nor public safety when fear of a civil arrest deters a
defendant charged with a traffic infraction, or a more serious crime,
from attending a scheduled court appearance in the case.
According to the Immigrant Defense Project, from 2016 to 2017, arrests
by federal Immigration and Customs Enforcement ("ICE") agents at court-
houses in New York State increased by 1200%. Fear of being targeted,
either due to a lack of legal immigration status or concern about the
uncertain status of .a family member, have dissuaded many individuals
from contacting law enforcement or following through with court
proceedings. District attorneys and legal representatives, in New York
and elsewhere, have expressed frustration and concern regarding their
ability to prosecute cases, as victims and witnesses are sometimes too
afraid to attend the proceedings. This inability of law enforcement and
the legal community to work effectively with immigrant communities and
individuals has potentially severe consequences for public safety, as
the justice system is handicapped by the unwillingness of victims,
witnesses, tenants and others to come forward and enter the courthouse.
As fewer individuals feel safe interacting with the justice system,
fearing potential implications for themselves, friends or family, it
becomes all the more challenging to promote public safety. It is imper-
ative that we ensure that all members of our community feel safe access-
ing New York's court system.
This bill would make a modest change to clarify and update New York's
century-old prohibition on certain courthouse arrests (Civil Rights Law
Art. 3). The bill would allow arrest for an immigration offense based on
a judicial arrest warrant or judicial order, signed by a judge of anoth-
er jurisdiction who is authorized to order such arrest. However, an
immigration-related courthouse arrest based on an administrative
warrant, or without a warrant, would not be permitted.
PRIOR LEGISLATIVE HISTORY:
A11013A 2017-2018 Legislative Session
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None expected.
EFFECTIVE DATE:
This bill would take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
2176--A
Cal. No. 484
2019-2020 Regular Sessions
IN ASSEMBLY
January 22, 2019
___________
Introduced by M. of A. SOLAGES, CRESPO, PICHARDO, LENTOL,
PEOPLES-STOKES, BICHOTTE, NIOU, BARRON, DAVILA, DE LA ROSA, DICKENS,
EPSTEIN, FERNANDEZ, HEVESI, HYNDMAN, JAFFEE, JEAN-PIERRE, MOSLEY,
O'DONNELL, PRETLOW, RAMOS, ROZIC, SEAWRIGHT, WEPRIN, WILLIAMS, WRIGHT,
LAVINE, KIM, GOTTFRIED, D'URSO, PERRY, JOYNER, ORTIZ, FAHY, SIMON,
BUCHWALD, LIFTON, ARROYO, GLICK, L. ROSENTHAL, TAYLOR, CAHILL, COOK,
RIVERA, OTIS, PAULIN, SIMOTAS, CRUZ, CARROLL, LUPARDO, DenDEKKER,
STIRPE, RICHARDSON, JACOBSON, BUTTENSCHON, QUART, ZEBROWSKI, COLTON,
GALEF, FALL, DINOWITZ, SAYEGH, BRONSON, RAYNOR, BLAKE, REYES, VANEL,
WALKER, NOLAN, TITUS, AUBRY -- read once and referred to the Committee
on Codes -- reported from committee, advanced to a third reading,
amended and ordered reprinted, retaining its place on the order of
third reading
AN ACT to amend the civil rights law and the judiciary law, in relation
to protecting certain interested parties or people from civil arrest
while going to, remaining at, or returning from the place of such
court proceeding
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "protect
2 our courts act".
3 § 2. The civil rights law is amended by adding a new section 28 to
4 read as follows:
5 § 28. Civil arrest; certain locations. 1. A person duly and in good
6 faith attending a court proceeding in which such person is a party or
7 potential witness, or a family or household member is a party or poten-
8 tial witness, is privileged from civil arrest while going to, remaining
9 at, and returning from, the place of such court proceeding, unless such
10 civil arrest is supported by a judicial warrant or judicial order
11 authorizing such civil arrest.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05356-09-9
A. 2176--A 2
1 2. It is a contempt of the court and false imprisonment for any person
2 to willfully violate subdivision one of this section, or an order of the
3 court issued pursuant to section four-a of the judiciary law, by execut-
4 ing an arrest prohibited by subdivision one of this section or section
5 four-a of the judiciary law, or willfully assisting an arrest prohibited
6 by subdivision one of this section or section four-a of the judiciary
7 law; provided, however, that nothing in this subdivision shall affect
8 any right or defense of any person, police officer, peace officer or
9 public officer pursuant to article thirty-five of the penal law, or any
10 unified court system personnel acting lawfully pursuant to their duty to
11 maintain safety and order in the courts.
12 3. Regardless of whether a proceeding for contempt of the court pursu-
13 ant to subdivision two of this section has been initiated:
14 (a) a person described in subdivision one of this section may bring a
15 civil action for appropriate equitable and declaratory relief if such
16 person has reasonable cause to believe a violation of subdivision one of
17 this section, as described in subdivision two of this section, or a
18 violation of section four-a of the judiciary law, has occurred or may
19 occur; and
20 (b) the attorney general may bring a civil action in the name of the
21 people of the state of New York to obtain appropriate equitable and
22 declaratory relief if the attorney general has reasonable cause to
23 believe that a violation of subdivision one of this section, as
24 described in subdivision two of this section, or a violation of section
25 four-a of the judiciary law, has occurred or may occur.
26 4. In any successful action pursuant to subdivision three of this
27 section, a plaintiff or petitioner may recover costs and reasonable
28 attorney's fees.
29 5. Nothing in this section shall be construed to narrow, or in any way
30 lessen, any common law or other right or privilege of a person privi-
31 leged from arrest pursuant to this article or otherwise.
32 6. As used in this section:
33 (a) "civil arrest" shall mean an arrest that is not:
34 (i) for the sole or primary purpose of preparing the person subject to
35 such arrest for criminal prosecution, for an alleged violation of the
36 criminal law of:
37 (A) this state, or another state, for which a sentence of a term of
38 imprisonment is authorized by law; or
39 (B) the United States, for which a sentence of a term of imprisonment
40 is authorized by law, and for which federal law requires an initial
41 appearance before a federal judge, federal magistrate or other judicial
42 officer, pursuant to the federal rules of criminal procedure that govern
43 initial appearances; or
44 (ii) for contempt of the court in which the court proceeding is taking
45 place or will be taking place;
46 (b) "court proceeding" shall mean any appearance in a court of this
47 state before a judge or justice or judicial magistrate of this state
48 ordered or scheduled by such judge or justice or judicial magistrate, or
49 the filing of papers designed to initiate such an appearance before a
50 judge or justice or judicial magistrate of this state;
51 (c) "family or household member" shall have the same meaning as in
52 subdivision two of section four hundred fifty-nine-a of the social
53 services law; and
54 (d) "judicial warrant or judicial order authorizing such civil arrest"
55 means an arrest warrant or other judicial order, issued by a magistrate
56 sitting in the judicial branch of a local or state government or of the
A. 2176--A 3
1 federal government, authorizing a civil arrest and issued by the court
2 in which proceedings following such arrest will be heard and determined.
3 7. No action or proceeding may be commenced pursuant to this section
4 against the unified court system or any unified court system personnel
5 acting lawfully pursuant to their duty to maintain safety and order in
6 the courts.
7 § 3. The judiciary law is amended by adding a new section 4-a to read
8 as follows:
9 § 4-a. Certain powers of the courts regarding civil arrests. In order
10 to maintain access to the court and open judicial proceedings for all
11 persons in their individual capacity and to prevent interference with
12 the needs of judicial administration, a court has the power to issue
13 appropriate judicial orders to protect the privilege from civil arrest,
14 in accordance with article three of the civil rights law.
15 § 4. Subdivision 2 of section 212 of the judiciary law is amended by
16 adding a new paragraph (aa) to read as follows:
17 (aa) (i) In order to maintain access to the court and open judicial
18 proceedings for all persons in their individual capacity and to prevent
19 interference with the needs of judicial administration, consistent with
20 section twenty-eight of the civil rights law and section four-a of this
21 chapter, shall promulgate rules to ensure the following:
22 (A) any representative of a law enforcement agency who, while acting
23 in an official capacity, enters a New York state courthouse intending to
24 observe an individual or take an individual into custody shall identify
25 himself or herself to uniformed court personnel and state his or her
26 specific law enforcement purpose and the proposed enforcement action to
27 be taken; any such representative who has a warrant or order concerning
28 such intended arrest shall provide a copy of such warrant or order to
29 such court personnel;
30 (B) any such warrant or order concerning such intended enforcement
31 action shall be promptly reviewed by a judge or court attorney;
32 (C) information about any such proposed enforcement action shall be
33 transmitted to and reviewed by appropriate court system personnel,
34 including the judge presiding over any case involving the subject of
35 that enforcement action;
36 (D) except in extraordinary circumstances, no arrest may be made by a
37 representative of a law enforcement agency in a courtroom absent leave
38 of the court;
39 (E) no civil arrest shall be executed inside a New York state court-
40 house except pursuant to a judicial warrant or judicial order authoriz-
41 ing the arrest;
42 (F) an unusual occurrence report shall be filed by court system
43 personnel for every enforcement action taken inside the courthouse,
44 including the observation of court proceedings by a representative of a
45 law enforcement agency acting in such person's official capacity; and
46 (G) copies of all judicial warrants and judicial orders authorizing an
47 arrest and provided to court personnel pursuant to this paragraph and
48 the rules promulgated thereunder shall be maintained by the chief admin-
49 istrator in a central record repository, appropriately indexed or filed
50 alphabetically by name.
51 (ii) The chief administrator shall publish on the unified court system
52 website and provide to the governor, the speaker of the assembly and the
53 temporary president of the senate an annual report compiling statistics,
54 aggregated by county, setting forth the date each such judicial warrant
55 or judicial order was signed, the judge and court which issued such
56 judicial warrant or judicial order and the location of such court as
A. 2176--A 4
1 shown by such document, the date such judicial warrant or judicial order
2 was presented to counsel for the unified court system, a description of
3 the type of judicial warrant or judicial order and, to the extent known
4 to court personnel, whether or not an arrest occurred with respect to
5 such warrant and the date and specific location of such arrest.
6 § 5. Severability clause. If any clause, sentence, paragraph, subdivi-
7 sion, section or part of this act shall be adjudged by any court of
8 competent jurisdiction to be invalid, such judgment shall not affect,
9 impair, or invalidate the remainder thereof, but shall be confined in
10 its operation to the clause, sentence, paragraph, subdivision, section
11 or part thereof directly involved in the controversy in which such judg-
12 ment shall have been rendered. It is hereby declared to be the intent of
13 the legislature that this act would have been enacted even if such
14 invalid provisions had not been included herein.
15 § 6. This act shall take effect immediately.
