STATE OF NEW YORK
________________________________________________________________________
6044
2019-2020 Regular Sessions
IN SENATE
May 16, 2019
___________
Introduced by Sen. STAVISKY -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law, the social services law, the
family court act and the executive law, in relation to maintaining the
confidentiality of immigration status for victims of domestic violence
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subparagraph (ii) of paragraph (b) and paragraph (c) of
2 subdivision 4 of section 140.10 of the criminal procedure law, subpara-
3 graph (ii) of paragraph (b) as amended by chapter 107 of the laws of
4 2004 and paragraph (c) as amended by chapter 4 of the laws of 1997, are
5 amended to read as follows:
6 (ii) The respondent or defendant commits a family offense as defined
7 in subdivision one of section eight hundred twelve of the family court
8 act or subdivision one of section 530.11 of this chapter in violation of
9 such order of protection or special order of conditions. An officer
10 making an arrest under this subparagraph shall not inquire as to the
11 immigration status of the person whom the order protects. If such
12 status is ascertained and would result in adverse immigration conse-
13 quences to such person, the officer shall not report such information to
14 any local, state or federal law enforcement agency.
15 (c) a misdemeanor constituting a family offense, as described in
16 subdivision one of section 530.11 of this chapter and section eight
17 hundred twelve of the family court act, has been committed by such
18 person against such family or household member, unless the victim
19 requests otherwise. The officer shall neither inquire as to whether the
20 victim seeks an arrest of such person nor threaten the arrest of any
21 person for the purpose of discouraging requests for police intervention.
22 The officer shall also not inquire as to the immigration status of the
23 victim; nor shall such officer, if informed of such status, report such
24 information to any local, state or federal law enforcement agency.
25 Notwithstanding the foregoing, when an officer has reasonable cause to
26 believe that more than one family or household member has committed such
27 a misdemeanor, the officer is not required to arrest each such person.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01576-01-9
S. 6044 2
1 In such circumstances, the officer shall attempt to identify and arrest
2 the primary physical aggressor after considering: (i) the comparative
3 extent of any injuries inflicted by and between the parties; (ii) wheth-
4 er any such person is threatening or has threatened future harm against
5 another party or another family or household member; (iii) whether any
6 such person has a prior history of domestic violence that the officer
7 can reasonably ascertain; and (iv) whether any such person acted defen-
8 sively to protect himself or herself from injury. The officer shall
9 evaluate each complaint separately to determine who is the primary phys-
10 ical aggressor and shall not base the decision to arrest or not to
11 arrest on the willingness of a person to testify or otherwise partic-
12 ipate in a judicial proceeding.
13 § 2. Subdivision 2 of section 530.11 of the criminal procedure law is
14 amended by adding a new paragraph (j) to read as follows:
15 (j) That any information regarding the petitioner's immigration status
16 shall be kept confidential and will not be referred or reported to any
17 local, state or federal law enforcement agency.
18 § 3. The criminal procedure law is amended by adding a new section
19 2.25 to read as follows:
20 § 2.25 Prohibitions on law enforcement agencies and peace officers.
21 A law enforcement agency of the state or a political subdivision of
22 the state or a peace officer may not inquire as to the nationality or
23 immigration status of a victim of or witness to domestic violence, as
24 such terms are defined by section four hundred fifty-nine-a of the
25 social services law, except as necessary to investigate the offense, nor
26 shall such officer report or refer such status to any local, state or
27 federal law enforcement agency.
28 § 4. Section 459-h of the social services law is amended by adding a
29 new subdivision 3 to read as follows:
30 3. All information related to a victim of domestic violence's immi-
31 gration status shall be kept confidential and shall not be disclosed for
32 any purpose, including such investigations that may be conducted by any
33 local, state or federal law enforcement agency relating to said individ-
34 ual's immigration status.
35 § 5. Subdivision 2 of section 812 of the family court act is amended
36 by adding a new paragraph (h) to read as follows:
37 (h) That any information regarding the petitioner's immigration status
38 shall be kept confidential and will not be referred or reported to any
39 local, state or federal law enforcement agency.
40 § 6. The executive law is amended by adding a new section 844 to read
41 as follows:
42 § 844. Inquiry into immigration status prohibited in certain circum-
43 stances. In conducting an investigatory activity, including an inter-
44 view, into any incident of domestic violence, as such term is defined in
45 article six-A of the social services law, a law enforcement agency or a
46 law enforcement official shall not inquire about or seek proof of a
47 person's immigration status, nor shall such officer, if informed of such
48 status, refer or report any findings regarding such status to any local,
49 state or federal law enforcement agency. Any information obtained in
50 such investigatory activity regarding a person's immigration status
51 shall be kept confidential.
52 § 7. This act shall take effect immediately, provided that the amend-
53 ments to subdivision 4 of section 140.10 of the criminal procedure law
54 made by section one of this act shall not affect the repeal of such
55 subdivision and shall be deemed repealed therewith.