STATE OF NEW YORK
        ________________________________________________________________________

                                         3978--A
                                                                Cal. No. 104

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    February 8, 2023
                                       ___________

        Introduced by M. of A. BICHOTTE HERMELYN, PEOPLES-STOKES, AUBRY, WALKER,
          COOK,  PRETLOW,  DINOWITZ,  HEVESI,  L. ROSENTHAL,  REYES,  ZEBROWSKI,
          BARRETT, SIMON, DICKENS, ROZIC, EPSTEIN,  COLTON,  HUNTER,  SEAWRIGHT,
          GLICK, WILLIAMS, TAYLOR, VANEL, OTIS, BRONSON, CARROLL, CRUZ, HYNDMAN,
          JACOBSON,  RAMOS,  STECK, THIELE, KIM, ZINERMAN, JACKSON, GONZALEZ-RO-
          JAS, LAVINE, KELLES, GIBBS, ARDILA -- read once and  referred  to  the
          Committee  on Codes -- ordered to a third reading, amended and ordered
          reprinted, retaining its place on the order of third reading

        AN ACT to amend the executive law, in relation to bias-based 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-y
     2  to read as follows:
     3    § 837-y. Bias-based profiling. 1. For the purposes of this section:
     4    (a) "Law enforcement agency" means an agency established by the  state
     5  or  a  unit of local government engaged in the prevention, detection, or
     6  investigation of violations of criminal law.
     7    (b) "Law enforcement officer" means a police officer or peace officer,
     8  as defined in subdivisions thirty-three and thirty-four of section  1.20
     9  of the criminal procedure law, employed by a law enforcement agency.
    10    (c) "Bias-based profiling" means the reliance, to any degree, on actu-
    11  al  or perceived race, color, ethnicity, national origin, immigration or
    12  citizenship status, age, religion, gender identity or expression, sexual
    13  orientation, mental or physical  disability,  socioeconomic  status,  or
    14  housing  status  in  selecting  which  persons  to  subject to stops, in
    15  selecting which locations to subject persons to stops,  or  in  deciding
    16  the  scope  or  substance  of  law  enforcement action against a person,
    17  except that an officer may consider or rely on characteristics listed in
    18  a specific suspect description relevant to the  locality  and  timeframe
    19  and based on trustworthy information.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07238-06-4

        A. 3978--A                          2

     1    (d)  "Routine  or  spontaneous  investigatory  activities"  means  the
     2  following activities by a law enforcement officer:
     3    (i) Interviews;
     4    (ii) Traffic stops;
     5    (iii) Pedestrian stops;
     6    (iv) Frisks and other types of body searches; and
     7    (v)  Consensual  or  nonconsensual  searches  of  persons, property or
     8  possessions (including vehicles) of individuals.
     9    (e) "Political subdivision" means any  county,  municipality,  depart-
    10  ment,  commission, district, board, or other public body, whether corpo-
    11  rate or otherwise, created by  or  under  state  law,  that  has  a  law
    12  enforcement agency or employs law enforcement officers.
    13    2.  Every  law  enforcement  agency  and every law enforcement officer
    14  shall be prohibited from engaging in bias-based profiling.
    15    3. Every law enforcement agency shall promulgate and adopt  a  written
    16  policy  which  prohibits  bias-based profiling. The policy shall be made
    17  publicly available.  In addition, each such agency shall promulgate  and
    18  adopt procedures for the review and the taking of corrective action with
    19  respect  to complaints by individuals who allege that they have been the
    20  subject of bias-based profiling.  The  policy  shall  be  made  publicly
    21  available.  In  a manner determined by the division in consultation with
    22  the attorney general, a copy of each such complaint received pursuant to
    23  this section and written notification of the review and  disposition  of
    24  such  complaint  shall  be promptly provided by such agency to the divi-
    25  sion.  Furthermore, on or before its effective date set forth in  subdi-
    26  vision  twelve  of  this section, and at least once annually thereafter,
    27  every law enforcement agency shall review  the  data  it  has  collected
    28  pursuant  to  subdivision four of this section to ensure that its proce-
    29  dures, practices, and training effectively address  and  prohibit  bias-
    30  based profiling.
    31    4.    Each law enforcement agency shall, using a form to be determined
    32  by the division in consultation with the attorney  general,  record  and
    33  retain  the  following incident-specific information with respect to law
    34  enforcement officers employed by such agency:
    35    (a) the number of persons stopped as a result of a routine or  sponta-
    36  neous law enforcement activity as defined in this section;
    37    (b)    whether  the person stopped was in a vehicle at the time of the
    38  stop;
    39    (c) the characteristics of race, color,  ethnicity,  national  origin,
    40  religion,  age,  gender  identity or expression, sexual orientation, and
    41  mental or physical disability of each such person,  provided  the  iden-
    42  tification of such characteristics shall be based on the observation and
    43  perception  of  the  officer responsible for initiating the stop and the
    44  information shall not be required to be provided by the person stopped;
    45    (d) whether the person stopped appeared to have limited or no  English
    46  fluency;
    47    (e) whether the person stopped appeared to be experiencing a mental or
    48  behavioral crisis;
    49    (f)  whether the officer perceived the person stopped to be experienc-
    50  ing homelessness;
    51    (g) if a vehicle was stopped, the number of individuals in the stopped
    52  vehicle;
    53    (h) if a vehicle was stopped, whether the officer ordered  any  person
    54  to exit the vehicle;
    55    (i) the reason the stop was initiated;

        A. 3978--A                          3

     1    (j)  if  a search was conducted, whether the search was of a person, a
     2  person's property and/or a person's  vehicle,  whether  the  search  was
     3  conducted  pursuant  to  consent,  the  basis  for conducting the search
     4  including any alleged criminal behavior that justified the  search,  and
     5  what, if any, contraband or evidence was discovered;
     6    (k) whether an inventory search of such person's impounded vehicle was
     7  conducted;
     8    (l) if a search was conducted, whether the officer seized any property
     9  and,  if  so,  the  type  and amount of property that was seized and the
    10  basis for the seizure;
    11    (m) whether a police dog performed a sniff and, if so, whether the dog
    12  alerted to the presence of contraband;
    13    (n) whether the officer handcuffed or otherwise physically  restrained
    14  any person during the stop;
    15    (o) whether a warning or citation was issued and, if so, the violation
    16  or violations cited;
    17    (p) whether an arrest was made and, if so, for what charge or charges;
    18    (q) whether the officer used physical force against any person and, if
    19  so, the type of force used;
    20    (r) whether the officer pointed a firearm or electronic control weapon
    21  at any person;
    22    (s) whether the encounter resulted in a vehicle or foot pursuit;
    23    (t) the approximate duration of the stop;
    24    (u) the time and location of the stop; and
    25    (v) the following information about the officer initiating the stop:
    26    (i) the type of assignment to which the officer was assigned;
    27    (ii) the officer's years of experience; and
    28    (iii)  the  total  number  of arrests the officer has made in the past
    29  twelve months.
    30    5. Each political subdivision covered by this section shall furnish to
    31  the division, in a manner that shall be defined and  prescribed  by  the
    32  division in consultation with the attorney general, a report which shall
    33  include:
    34    (a)  the total amount spent in the prior year, either by the political
    35  subdivision or by any entity on behalf of such political subdivision, on
    36  settlements and judgments involving an  allegation  of  law  enforcement
    37  misconduct,  including  settlements  reached before any lawsuit has been
    38  filed, and that shall be broken down by individual settlement  or  judg-
    39  ment, shall specify whether a settlement or judgment is being described,
    40  and shall include at a minimum:
    41    (i) a brief description of the allegation or claim;
    42    (ii)  the  portion  of the settlement or judgment paid directly by the
    43  political subdivision;
    44    (iii) the portion, if any, paid by insurance, or  by  a  central  risk
    45  management fund or pool; and
    46    (iv)  if any portion of the settlement or judgment is paid with bonds,
    47  the amount of such bonds, as well as  the  total  future  cost  of  such
    48  bonds, including any interest and fees;
    49    (b)  the total amount, if any, spent on any insurance premiums paid by
    50  the political subdivision for insurance against law enforcement  miscon-
    51  duct;
    52    (c)  the total amount, if any, that the political subdivision contrib-
    53  uted to any central risk management fund or risk pool toward the settle-
    54  ment of law enforcement misconduct claims; and
    55    (d) any injunctive or declaratory relief awarded,  or  any  comparable
    56  terms in any settlement agreement.

        A. 3978--A                          4

     1    6.    The  division,  in consultation with the attorney general, shall
     2  develop and promulgate:
     3    (a)  A  form  in both printed and electronic format, to be used by law
     4  enforcement officers to record the  information  listed  in  subdivision
     5  four of this section; and
     6    (b)  A  form  to  be used to report complaints pursuant to subdivision
     7  three of  this  section  by  individuals  who  believe  they  have  been
     8  subjected to bias-based profiling.
     9    7.  Every  law enforcement agency shall promptly make available to the
    10  attorney general, upon demand and notice, the documents required  to  be
    11  produced  and promulgated pursuant to subdivisions three, four, and five
    12  of this section.
    13    8. On or before the effective date of this section, and at least  once
    14  annually thereafter, every law enforcement agency and political subdivi-
    15  sion   covered   by   this   section   shall  compile  and  furnish  all
    16  data/information collected pursuant to subdivisions  four  and  five  of
    17  this  section  to  the  division. The division, in consultation with the
    18  attorney general, shall develop and implement a plan for a  computerized
    19  data  system for public viewing of such data and shall publish an annual
    20  report on data collected for the  governor,  the  legislature,  and  the
    21  public.  Information  released publicly shall not reveal the identity of
    22  any individual.  Any information received by the division shall be  made
    23  available to the attorney general upon request.
    24    9.  The  attorney  general may bring an action on behalf of the people
    25  for injunctive relief and/or damages against a  law  enforcement  agency
    26  that  is  engaging  in  or has engaged in a pattern or practice of bias-
    27  based profiling in a court having jurisdiction to issue such relief. The
    28  court may award costs and  reasonable  attorney  fees  to  the  attorney
    29  general who prevails in such an action.  The attorney general may inves-
    30  tigate and, if warranted, bring a civil action for equitable or declara-
    31  tory  relief  against a law enforcement agency that fails to comply with
    32  the remaining provisions of this section.
    33    10. In addition to a cause of action brought pursuant  to  subdivision
    34  nine  of  this section, an individual who has been the subject of an act
    35  or acts of bias-based profiling  may  bring  an  action  for  injunctive
    36  relief  and/or  damages against a law enforcement agency that is engaged
    37  in or has engaged in an act or acts of bias-based profiling.  The  court
    38  may award costs and reasonable attorney fees to a plaintiff who prevails
    39  in  such an action.  In addition, an individual may bring a civil action
    40  for equitable or declaratory relief against  a  law  enforcement  agency
    41  that fails to comply with the remaining provisions of this section.
    42    11. Nothing in this section shall be construed as diminishing or abro-
    43  gating  any right, remedy or cause of action which an individual who has
    44  been subject to bias-based profiling may  have  pursuant  to  any  other
    45  provision of law.
    46    12.  Each  law enforcement agency and political subdivision covered by
    47  this section shall report all information required by subdivisions  four
    48  and five of this section in accordance with the following schedule:
    49    (a)  each law enforcement agency that employs one thousand or more law
    50  enforcement officers, and each political subdivision that  has  such  an
    51  agency,  shall issue their first annual reports pursuant to subdivisions
    52  four and five of this section no later than fourteen  months  after  the
    53  regulations promulgated pursuant to this section have been finalized;
    54    (b)  each law enforcement agency that employs four hundred or more but
    55  less than one thousand law  enforcement  officers,  and  each  political
    56  subdivision  that  has  such  an  agency, shall issue their first annual

        A. 3978--A                          5

     1  reports pursuant to subdivisions four and five of this section no  later
     2  than  two  years  after  the  regulations  promulgated  pursuant to this
     3  section have been finalized;
     4    (c)  each  law  enforcement agency that employs fifty or more but less
     5  than four hundred law enforcement officers, and each political  subdivi-
     6  sion  that  has  such  an agency, shall issue their first annual reports
     7  pursuant to subdivisions four and five of this  section  no  later  than
     8  three  years  after the regulations promulgated pursuant to this section
     9  have been finalized; and
    10    (d) each law enforcement agency that employs one or more but less than
    11  fifty law enforcement officers, and each political subdivision that  has
    12  such  an  agency,  shall  issue  their  first annual reports pursuant to
    13  subdivisions four and five of this section  no  later  than  four  years
    14  after  the  regulations  promulgated  pursuant to this section have been
    15  finalized.
    16    13. No later than one hundred eighty days after the effective date  of
    17  this  section,  the division, in consultation with the attorney general,
    18  shall adopt  regulations  for  the  collection  and  reporting  of  data
    19  required  under  this  section, in a manner prescribed under section two
    20  hundred two of the state administrative procedure act.  The  regulations
    21  adopted  shall  specify  all data to be reported, and provide standards,
    22  definitions, and technical  specifications  not  inconsistent  with  the
    23  requirements  of  this  section  to  ensure  uniform reporting practices
    24  across all reporting entities. To the extent  possible,  and  consistent
    25  with the requirements of this section, such regulations shall be compat-
    26  ible with any similar federal data collection or reporting programs.
    27    § 2. This act shall take effect immediately.