Bill Text: NY S05093 | 2023-2024 | General Assembly | Amended
Bill Title: Prohibits police officers from using bias-based profiling; requires that a procedure be established for the taking and review of complaints against police officers for bias-based profiling; allows an action for injunctive relief and/or damages to be brought against a law enforcement agency, any agent of a law enforcement agency and the supervisor of an agent.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced) 2024-03-13 - PRINT NUMBER 5093B [S05093 Detail]
Download: New_York-2023-S05093-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 5093--B 2023-2024 Regular Sessions IN SENATE February 22, 2023 ___________ Introduced by Sen. CLEARE -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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. 20 (d) "Reportable encounter" means the following activities by a law 21 enforcement officer: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07238-11-4S. 5093--B 2 1 (i) The stop of a vehicle that, based on a totality of the circum- 2 stances, would make a reasonable person feel that they are not free to 3 leave or otherwise terminate the encounter; 4 (ii) The stop of a pedestrian that, based on a totality of the circum- 5 stances, would make a reasonable person feel that they are not free to 6 leave or otherwise terminate the encounter; 7 (iii) Frisks and other types of body searches; and 8 (iv) Consensual or nonconsensual searches of persons, property or 9 possessions (including vehicles) of individuals. 10 (e) "Political subdivision" means any county, municipality, depart- 11 ment, commission, district, board, or other public body, whether corpo- 12 rate or otherwise, created by or under state law, that has a law 13 enforcement agency or employs law enforcement officers. 14 2. Every law enforcement agency and every law enforcement officer 15 shall be prohibited from engaging in bias-based profiling. 16 3. Every law enforcement agency shall promulgate and adopt a written 17 policy which prohibits bias-based profiling. The policy shall be made 18 publicly available. In addition, each such agency shall promulgate and 19 adopt procedures for the review and the taking of corrective action with 20 respect to complaints by individuals who allege that they have been the 21 subject of bias-based profiling. The policy shall be made publicly 22 available. In a manner determined by the division in consultation with 23 the attorney general, a copy of each such complaint received pursuant to 24 this section and written notification of the review and disposition of 25 such complaint shall be promptly provided by such agency to the divi- 26 sion. As set forth in subdivision eleven of this section, and at least 27 once annually thereafter, every law enforcement agency shall review the 28 data it has collected pursuant to subdivision four of this section to 29 ensure that its procedures, practices, and training effectively address 30 and prohibit bias-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 for each reportable 34 encounter with respect to law enforcement officers employed by such 35 agency: 36 (a) the number of persons stopped; 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;S. 5093--B 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 date, 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.S. 5093--B 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. The attorney general may bring an action on behalf of the people 14 for injunctive relief and/or damages against a law enforcement agency 15 that is engaging in or has engaged in a pattern or practice of bias- 16 based profiling in a court having jurisdiction to issue such relief. The 17 court may award costs and reasonable attorney fees to the attorney 18 general who prevails in such an action. The attorney general may inves- 19 tigate and, if warranted, bring a civil action for equitable or declara- 20 tory relief against a law enforcement agency that fails to comply with 21 the remaining provisions of this section. 22 9. In addition to a cause of action brought pursuant to subdivision 23 eight of this section, an individual who has been the subject of an act 24 or acts of bias-based profiling may bring an action for injunctive 25 relief and/or damages against a law enforcement agency that is engaged 26 in or has engaged in an act or acts of bias-based profiling. The court 27 may award costs and reasonable attorney fees to a plaintiff who prevails 28 in such an action. In addition, an individual may bring a civil action 29 for equitable or declaratory relief against a law enforcement agency 30 that fails to comply with the remaining provisions of this section. 31 10. Nothing in this section shall be construed as diminishing or abro- 32 gating any right, remedy or cause of action which an individual who has 33 been subject to bias-based profiling may have pursuant to any other 34 provision of law. 35 11. Each law enforcement agency and political subdivision covered by 36 this section shall annually compile and furnish all data and information 37 collected pursuant to subdivisions four and five of this section in a 38 report to the division. The division, in consultation with the attorney 39 general, shall develop and implement a plan for a computerized data 40 system for public viewing of such data and shall publish an annual 41 report on data collected for the governor, the legislature, and the 42 public. Information released publicly shall not reveal the identity of 43 any individual. Any information received by the division shall be made 44 available to the attorney general upon request. Each law enforcement 45 agency and political subdivision covered by this section shall report 46 all information required by subdivisions four and five of this section 47 in accordance with the following schedule: 48 (a) each law enforcement agency that employs one thousand or more law 49 enforcement officers, and each political subdivision that has such an 50 agency, shall issue their first annual reports pursuant to subdivisions 51 four and five of this section no later than fourteen months after the 52 regulations promulgated pursuant to this section have been finalized; 53 (b) each law enforcement agency that employs four hundred or more but 54 less than one thousand law enforcement officers, and each political 55 subdivision that has such an agency, shall issue their first annual 56 reports pursuant to subdivisions four and five of this section no laterS. 5093--B 5 1 than two years after the regulations promulgated pursuant to this 2 section have been finalized; 3 (c) each law enforcement agency that employs fifty or more but less 4 than four hundred law enforcement officers, and each political subdivi- 5 sion that has such an agency, shall issue their first annual reports 6 pursuant to subdivisions four and five of this section no later than 7 three years after the regulations promulgated pursuant to this section 8 have been finalized; and 9 (d) each law enforcement agency that employs one or more but less than 10 fifty law enforcement officers, and each political subdivision that has 11 such an agency, shall issue their first annual reports pursuant to 12 subdivisions four and five of this section no later than four years 13 after the regulations promulgated pursuant to this section have been 14 finalized. 15 12. No later than one hundred eighty days after the effective date of 16 this section, the division, in consultation with the attorney general, 17 shall adopt regulations for the collection and reporting of data 18 required under this section, in a manner prescribed under section two 19 hundred two of the state administrative procedure act. The regulations 20 adopted shall specify all data to be reported, and provide standards, 21 definitions, and technical specifications not inconsistent with the 22 requirements of this section to ensure uniform reporting practices 23 across all reporting entities. To the extent possible, and consistent 24 with the requirements of this section, such regulations shall be compat- 25 ible with any similar federal data collection or reporting programs. 26 13. Any local legislative body may adopt local laws through local 27 order, and any law enforcement agency may prescribe rules and regu- 28 lations, that impose additional duties and requirements upon law 29 enforcement agencies or law enforcement officers provided such duties 30 and requirements are consistent with the provisions of this section. 31 § 2. This act shall take effect immediately.
