Bill Text: NY S05635 | 2013-2014 | General Assembly | Introduced
Bill Title: Relates to the prevention of terrorist attacks.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-01-08 - REFERRED TO VETERANS, HOMELAND SECURITY AND MILITARY AFFAIRS [S05635 Detail]
Download: New_York-2013-S05635-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5635
2013-2014 Regular Sessions
I N S E N A T E
May 30, 2013
___________
Introduced by Sen. BALL -- read twice and ordered printed, and when
printed to be committed to the Committee on Veterans, Homeland Securi-
ty and Military Affairs
AN ACT to amend the executive law, the criminal procedure law, and the
penal law, in relation to the prevention of terrorist attacks
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Legislative findings. The legislature finds and declares
2 that preventing terrorist attacks on our citizens - including not only
3 possible deaths and injuries, but also crushing economic harm or even
4 chaos - is a compelling governmental interest.
5 The legislature further finds and declares that since both law
6 enforcement resources and the time necessary to make an initial decision
7 regarding stopping and questioning are very limited, this compelling
8 governmental interest demands that law enforcement must be afforded the
9 means of identification of potential terrorist suspects as effectively
10 and efficiently as possible so that they may be stopped, questioned,
11 frisked, and/or searched.
12 The legislature also finds and declares that homeland security experts
13 have suggested that, while no one single factor is definitive, a wide
14 variety of factors, such as the following, can help identify potential
15 terrorism suspects:
16 1. Wearing heavy clothing in warm weather;
17 2. Carrying a briefcase, duffle bag or backpack with protrusions or
18 visible wires;
19 3. Displaying uncharacteristic nervousness and/or inappropriate sweat-
20 ing;
21 4. An inability or unwillingness to make eye contact; and/or
22 5. Chemical burns on clothing or stains on hands.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11294-01-3
S. 5635 2
1 For this reason, law enforcement personnel are often asked to look for
2 and consider such factors in determining which persons to stop, ques-
3 tion, frisk and/or search.
4 The legislature additionally finds and declares that many homeland
5 security experts have further suggested, and the history of modern
6 terrorism has confirmed, that the national origin of a person can also
7 be a very important, if not crucial factor, along with others, in iden-
8 tifying potential terrorist suspects. Accordingly, homeland security
9 experts have additionally suggested, and such experience has confirmed,
10 that many terrorism acts are performed by radical individuals with
11 national origins from countries such as: Afghanistan, Pakistan, Iran,
12 Syria, Yemen, Lebanon, Iraq, Egypt, Saudi Arabia, Libya, Nigeria, Soma-
13 lia, Algeria, Russia, Peru, Philippines, Mali, Indonesia, and Malaysia.
14 As a result, the use of national origin serves a compelling governmental
15 interest in helping law enforcement personnel to determine effectively
16 and efficiently, along with other factors, which persons to stop, ques-
17 tion, frisk and/or search.
18 The legislature further finds and determines, that the good faith
19 questioning or searching of a suspicious terrorist suspect, has only
20 momentary consequences for innocent persons, and can prevent monumental
21 and enormous public harm and injury, unlike other governmental decisions
22 upheld by the Supreme Court of the United States, which have lasting and
23 very significant adverse consequences for the compelling interest use of
24 ethnic or racial decisions.
25 Therefore, the legislature fines that, in the interest of ensuring the
26 most effective terrorist prevention which meets United States and New
27 York State constitutional protections, it is necessary to enact a law
28 which will authorize law enforcement personnel to consider national
29 origin as one of many factors which could be used in identifying persons
30 who can be initially stopped, questioned, frisked and/or searched.
31 S 2. The executive law is amended by adding a new section 837-s to
32 read as follows:
33 S 837-S. POTENTIAL TERRORIST SUSPECT PROFILE. NOTWITHSTANDING ANY
34 STATE OR LOCAL LAW, RULE OR REGULATION TO THE CONTRARY:
35 1. FOR PURPOSES OF THIS SECTION, "POTENTIAL TERRORIST SUSPECT PROFILE"
36 SHALL MEAN MULTIPLE FACTORS WHICH DETERMINE THE EXISTENCE OF A REASON-
37 ABLE INDIVIDUALIZED SUSPICION AND/OR PROBABLE CAUSE AND PROVIDE CAUSE
38 FOR A PEACE OFFICER OR POLICE OFFICER TO LAWFULLY JUSTIFY THE STOPPING
39 OF A MOTOR VEHICLE, THE STOPPING AND QUESTIONING OF AN INDIVIDUAL,
40 AND/OR THE STOPPING AND FRISKING OF AN INDIVIDUAL, IN FURTHERANCE OF THE
41 GOVERNMENT'S COMPELLING INTEREST IN DETERRING TERRORIST ATTACKS. ONE OF
42 THESE FACTORS MAY BE THE NATIONAL ORIGIN OF THE INDIVIDUAL, PARTICULARLY
43 A GOOD FAITH SUSPICION THAT THE INDIVIDUAL TO BE STOPPED, QUESTIONED,
44 FRISKED OR SEARCHED HAS TIES TO ANY COUNTRY WHICH HAS HAD A HISTORY OF
45 MAINTAINING A TERRORIST ORGANIZATION, INCLUDING, BUT NOT LIMITED TO,
46 AFGHANISTAN, PAKISTAN, IRAN, SYRIA, YEMEN, LEBANON, IRAQ, EGYPT, SAUDI
47 ARABIA, LIBYA, NIGERIA, SOMALIA, ALGERIA, RUSSIA, PERU, PHILIPPINES,
48 MALI, INDONESIA, OR MALAYSIA.
49 2. FOR PURPOSES OF THIS SECTION "NATIONAL ORIGIN" SHALL INCLUDE
50 "ANCESTRY".
51 3. A PEACE OFFICER OR POLICE OFFICER, AS DEFINED IN SECTION 1.20 OF
52 THE CRIMINAL PROCEDURE LAW, MAY CONSIDER THE NATIONAL ORIGIN OF A
53 SUSPECT AS ONE OF MANY FACTORS IN A POTENTIAL TERRORIST SUSPECT PROFILE
54 WHICH HE OR SHE COULD USE TO IDENTIFY PERSONS WHO COULD BE STOPPED,
55 QUESTIONED, FRISKED AND/OR SEARCHED IN FURTHERANCE OF THE GOVERNMENT'S
56 COMPELLING INTEREST IN DETERRING TERRORIST ATTACKS; PROVIDED, HOWEVER,
S. 5635 3
1 THAT SUCH NATIONAL ORIGIN SHALL NOT BE THE SOLE CRITERIA UTILIZED FOR
2 MAKING THE DECISION. RATHER, THE NATIONAL ORIGIN OF THE INDIVIDUAL MAY
3 BE UTILIZED AS ONLY ONE OF SEVERAL FACTORS, AND SUCH PEACE OFFICERS OR
4 POLICE OFFICERS SHALL ENGAGE IN A HIGHLY INDIVIDUALIZED, HOLISTIC
5 CONSIDERATION OF EACH PERSON'S TOTALITY OF CHARACTERISTICS AND FACTORS
6 IN CARRYING OUT HIS OR HER LAW ENFORCEMENT FUNCTIONS, INCLUDING DETER-
7 MINING WHO TO STOP, QUESTION, FRISK AND/OR SEARCH.
8 S 3. The criminal procedure law is amended by adding a new section
9 140.60 to read as follows:
10 S 140.60 POTENTIAL TERRORIST SUSPECT PROFILE.
11 NOTWITHSTANDING ANY STATE OR LOCAL LAW, RULE OR REGULATION TO THE
12 CONTRARY:
13 1. FOR PURPOSES OF THIS SECTION, "POTENTIAL TERRORIST SUSPECT PROFILE"
14 SHALL MEAN MULTIPLE FACTORS WHICH DETERMINE THE EXISTENCE OF A REASON-
15 ABLE INDIVIDUALIZED SUSPICION AND/OR PROBABLE CAUSE AND PROVIDE CAUSE
16 FOR A PEACE OFFICER OR POLICE OFFICER TO LAWFULLY JUSTIFY THE STOPPING
17 OF A MOTOR VEHICLE, THE STOPPING AND QUESTIONING OF AN INDIVIDUAL,
18 AND/OR THE STOPPING AND FRISKING OF AN INDIVIDUAL, IN FURTHERANCE OF THE
19 GOVERNMENT'S COMPELLING INTEREST IN DETERRING TERRORIST ATTACKS. ONE OF
20 THESE FACTORS MAY BE THE NATIONAL ORIGIN OF THE INDIVIDUAL, PARTICULARLY
21 A GOOD FAITH SUSPICION THAT THE INDIVIDUAL TO BE STOPPED, QUESTIONED,
22 FRISKED OR SEARCHED HAS TIES TO ANY COUNTRY WHICH HAS HAD A HISTORY OF
23 MAINTAINING A TERRORIST ORGANIZATION, INCLUDING, BUT NOT LIMITED TO,
24 AFGHANISTAN, PAKISTAN, IRAN, SYRIA, YEMEN, LEBANON, IRAQ, EGYPT, SAUDI
25 ARABIA, LIBYA, NIGERIA, SOMALIA, ALGERIA, RUSSIA, PERU, PHILIPPINES,
26 MALI, INDONESIA, OR MALAYSIA.
27 2. FOR PURPOSES OF THIS SECTION "NATIONAL ORIGIN" SHALL INCLUDE
28 "ANCESTRY".
29 3. A PEACE OFFICER OR POLICE OFFICER, AS DEFINED IN SECTION 1.20 OF
30 THIS CHAPTER, MAY CONSIDER THE NATIONAL ORIGIN OF A SUSPECT AS ONE OF
31 MANY FACTORS IN A POTENTIAL TERRORIST SUSPECT PROFILE WHICH HE OR SHE
32 COULD USE TO IDENTIFY PERSONS WHO COULD BE STOPPED, QUESTIONED, FRISKED
33 AND/OR SEARCHED IN FURTHERANCE OF THE GOVERNMENT'S COMPELLING INTEREST
34 IN DETERRING TERRORIST ATTACKS; PROVIDED, HOWEVER, THAT SUCH NATIONAL
35 ORIGIN SHALL NOT BE THE SOLE CRITERIA UTILIZED FOR MAKING THE DECISION.
36 RATHER, THE NATIONAL ORIGIN OF THE INDIVIDUAL MAY BE UTILIZED AS ONLY
37 ONE OF SEVERAL FACTORS, AND SUCH PEACE OFFICERS OR POLICE OFFICERS SHALL
38 ENGAGE IN A HIGHLY INDIVIDUALIZED, HOLISTIC CONSIDERATION OF EACH
39 PERSON'S TOTALITY OF CHARACTERISTICS AND FACTORS IN CARRYING OUT HIS OR
40 HER LAW ENFORCEMENT FUNCTIONS, INCLUDING DETERMINING WHOM TO STOP, QUES-
41 TION, FRISK AND/OR SEARCH.
42 S 4. The penal law is amended by adding a new section 490.02 to read
43 as follows:
44 S 490.02 LIABILITY PROTECTION FOR NATIONAL ORIGIN PROFILING.
45 1. ANY PERSON WHO STOPS, QUESTIONS, FRISKS OR SEARCHES AN INDIVIDUAL,
46 WITH THE INTENTION OF PREVENTING AN ACT OF TERRORISM, UPON A GOOD FAITH
47 SUSPICION THAT THE INDIVIDUAL TO BE STOPPED, QUESTIONED, FRISKED OR
48 SEARCHED, HAS TIES TO ANY COUNTRY WHICH HAS HAD A HISTORY OF MAINTAINING
49 A TERRORIST ORGANIZATION, INCLUDING, BUT NOT LIMITED TO, AFGHANISTAN,
50 PAKISTAN, IRAN, SYRIA, YEMEN, LEBANON, IRAQ, EGYPT, SAUDI ARABIA, LIBYA,
51 NIGERIA, SOMALIA, ALGERIA, RUSSIA, PERU, PHILIPPINES, MALI, INDONESIA,
52 OR MALAYSIA, SHALL BE IMMUNE FROM CIVIL AND CRIMINAL LIABILITY FOR SUCH
53 STOP, QUESTIONING, FRISK OR SEARCH.
54 2. AN ACTION ALLEGING THAT A STOP, QUESTIONING, FRISK OR SEARCH BY A
55 PERSON OR AN INDIVIDUAL, WITH THE INTENTION OF PREVENTING AN ACT OF
56 TERRORISM, UPON A GOOD FAITH SUSPICION THAT THE INDIVIDUAL TO BE
S. 5635 4
1 STOPPED, QUESTIONED, FRISKED OR SEARCHED, HAS TIES TO ANY COUNTRY WHICH
2 HAS HAD A HISTORY OF MAINTAINING A TERRORIST ORGANIZATION, INCLUDING,
3 BUT NOT LIMITED TO, AFGHANISTAN, PAKISTAN, IRAN, SYRIA, YEMEN, LEBANON,
4 IRAQ, EGYPT, SAUDI ARABIA, LIBYA, NIGERIA, SOMALIA, ALGERIA, RUSSIA,
5 PERU, PHILIPPINES, MALI, INDONESIA, OR MALAYSIA, WAS NOT MADE IN GOOD
6 FAITH, MUST BE PLED WITH PARTICULARITY PURSUANT TO SUBDIVISION (B) OF
7 RULE THREE THOUSAND SIXTEEN OF THE CIVIL PRACTICE LAW AND RULES.
8 S 5. This act shall take effect immediately.
