STATE OF NEW YORK ________________________________________________________________________ 5093--A 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 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) "Routine or spontaneous investigatory activities" means the 21 following activities by a law enforcement officer: 22 (i) Interviews; 23 (ii) Traffic stops; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07238-07-4S. 5093--A 2 1 (iii) Pedestrian stops; 2 (iv) Frisks and other types of body searches; and 3 (v) Consensual or nonconsensual searches of persons, property or 4 possessions (including vehicles) of individuals. 5 (e) "Political subdivision" means any county, municipality, depart- 6 ment, commission, district, board, or other public body, whether corpo- 7 rate or otherwise, created by or under state law, that has a law 8 enforcement agency or employs law enforcement officers. 9 2. Every law enforcement agency and every law enforcement officer 10 shall be prohibited from engaging in bias-based profiling. 11 3. Every law enforcement agency shall promulgate and adopt a written 12 policy which prohibits bias-based profiling. The policy shall be made 13 publicly available. In addition, each such agency shall promulgate and 14 adopt procedures for the review and the taking of corrective action with 15 respect to complaints by individuals who allege that they have been the 16 subject of bias-based profiling. The policy shall be made publicly 17 available. In a manner determined by the division in consultation with 18 the attorney general, a copy of each such complaint received pursuant to 19 this section and written notification of the review and disposition of 20 such complaint shall be promptly provided by such agency to the divi- 21 sion. Furthermore, on or before its effective date set forth in subdi- 22 vision twelve of this section, and at least once annually thereafter, 23 every law enforcement agency shall review the data it has collected 24 pursuant to subdivision four of this section to ensure that its proce- 25 dures, practices, and training effectively address and prohibit bias- 26 based profiling. 27 4. Each law enforcement agency shall, using a form to be determined 28 by the division in consultation with the attorney general, record and 29 retain the following incident-specific information with respect to law 30 enforcement officers employed by such agency: 31 (a) the number of persons stopped as a result of a routine or sponta- 32 neous law enforcement activity as defined in this section; 33 (b) whether the person stopped was in a vehicle at the time of the 34 stop; 35 (c) the characteristics of race, color, ethnicity, national origin, 36 religion, age, gender identity or expression, sexual orientation, and 37 mental or physical disability of each such person, provided the iden- 38 tification of such characteristics shall be based on the observation and 39 perception of the officer responsible for initiating the stop and the 40 information shall not be required to be provided by the person stopped; 41 (d) whether the person stopped appeared to have limited or no English 42 fluency; 43 (e) whether the person stopped appeared to be experiencing a mental or 44 behavioral crisis; 45 (f) whether the officer perceived the person stopped to be experienc- 46 ing homelessness; 47 (g) if a vehicle was stopped, the number of individuals in the stopped 48 vehicle; 49 (h) if a vehicle was stopped, whether the officer ordered any person 50 to exit the vehicle; 51 (i) the reason the stop was initiated; 52 (j) if a search was conducted, whether the search was of a person, a 53 person's property and/or a person's vehicle, whether the search was 54 conducted pursuant to consent, the basis for conducting the search 55 including any alleged criminal behavior that justified the search, and 56 what, if any, contraband or evidence was discovered;S. 5093--A 3 1 (k) whether an inventory search of such person's impounded vehicle was 2 conducted; 3 (l) if a search was conducted, whether the officer seized any property 4 and, if so, the type and amount of property that was seized and the 5 basis for the seizure; 6 (m) whether a police dog performed a sniff and, if so, whether the dog 7 alerted to the presence of contraband; 8 (n) whether the officer handcuffed or otherwise physically restrained 9 any person during the stop; 10 (o) whether a warning or citation was issued and, if so, the violation 11 or violations cited; 12 (p) whether an arrest was made and, if so, for what charge or charges; 13 (q) whether the officer used physical force against any person and, if 14 so, the type of force used; 15 (r) whether the officer pointed a firearm or electronic control weapon 16 at any person; 17 (s) whether the encounter resulted in a vehicle or foot pursuit; 18 (t) the approximate duration of the stop; 19 (u) the time and location of the stop; and 20 (v) the following information about the officer initiating the stop: 21 (i) the type of assignment to which the officer was assigned; 22 (ii) the officer's years of experience; and 23 (iii) the total number of arrests the officer has made in the past 24 twelve months. 25 5. Each political subdivision covered by this section shall furnish to 26 the division, in a manner that shall be defined and prescribed by the 27 division in consultation with the attorney general, a report which shall 28 include: 29 (a) the total amount spent in the prior year, either by the political 30 subdivision or by any entity on behalf of such political subdivision, on 31 settlements and judgments involving an allegation of law enforcement 32 misconduct, including settlements reached before any lawsuit has been 33 filed, and that shall be broken down by individual settlement or judg- 34 ment, shall specify whether a settlement or judgment is being described, 35 and shall include at a minimum: 36 (i) a brief description of the allegation or claim; 37 (ii) the portion of the settlement or judgment paid directly by the 38 political subdivision; 39 (iii) the portion, if any, paid by insurance, or by a central risk 40 management fund or pool; and 41 (iv) if any portion of the settlement or judgment is paid with bonds, 42 the amount of such bonds, as well as the total future cost of such 43 bonds, including any interest and fees; 44 (b) the total amount, if any, spent on any insurance premiums paid by 45 the political subdivision for insurance against law enforcement miscon- 46 duct; 47 (c) the total amount, if any, that the political subdivision contrib- 48 uted to any central risk management fund or risk pool toward the settle- 49 ment of law enforcement misconduct claims; and 50 (d) any injunctive or declaratory relief awarded, or any comparable 51 terms in any settlement agreement. 52 6. The division, in consultation with the attorney general, shall 53 develop and promulgate: 54 (a) A form in both printed and electronic format, to be used by law 55 enforcement officers to record the information listed in subdivision 56 four of this section; andS. 5093--A 4 1 (b) A form to be used to report complaints pursuant to subdivision 2 three of this section by individuals who believe they have been 3 subjected to bias-based profiling. 4 7. Every law enforcement agency shall promptly make available to the 5 attorney general, upon demand and notice, the documents required to be 6 produced and promulgated pursuant to subdivisions three, four, and five 7 of this section. 8 8. On or before the effective date of this section, and at least once 9 annually thereafter, every law enforcement agency and political subdivi- 10 sion covered by this section shall compile and furnish all 11 data/information collected pursuant to subdivisions four and five of 12 this section to the division. The division, in consultation with the 13 attorney general, shall develop and implement a plan for a computerized 14 data system for public viewing of such data and shall publish an annual 15 report on data collected for the governor, the legislature, and the 16 public. Information released publicly shall not reveal the identity of 17 any individual. Any information received by the division shall be made 18 available to the attorney general upon request. 19 9. The attorney general may bring an action on behalf of the people 20 for injunctive relief and/or damages against a law enforcement agency 21 that is engaging in or has engaged in a pattern or practice of bias- 22 based profiling in a court having jurisdiction to issue such relief. The 23 court may award costs and reasonable attorney fees to the attorney 24 general who prevails in such an action. The attorney general may inves- 25 tigate and, if warranted, bring a civil action for equitable or declara- 26 tory relief against a law enforcement agency that fails to comply with 27 the remaining provisions of this section. 28 10. In addition to a cause of action brought pursuant to subdivision 29 nine of this section, an individual who has been the subject of an act 30 or acts of bias-based profiling may bring an action for injunctive 31 relief and/or damages against a law enforcement agency that is engaged 32 in or has engaged in an act or acts of bias-based profiling. The court 33 may award costs and reasonable attorney fees to a plaintiff who prevails 34 in such an action. In addition, an individual may bring a civil action 35 for equitable or declaratory relief against a law enforcement agency 36 that fails to comply with the remaining provisions of this section. 37 11. Nothing in this section shall be construed as diminishing or abro- 38 gating any right, remedy or cause of action which an individual who has 39 been subject to bias-based profiling may have pursuant to any other 40 provision of law. 41 12. Each law enforcement agency and political subdivision covered by 42 this section shall report all information required by subdivisions four 43 and five of this section in accordance with the following schedule: 44 (a) each law enforcement agency that employs one thousand or more law 45 enforcement officers, and each political subdivision that has such an 46 agency, shall issue their first annual reports pursuant to subdivisions 47 four and five of this section no later than fourteen months after the 48 regulations promulgated pursuant to this section have been finalized; 49 (b) each law enforcement agency that employs four hundred or more but 50 less than one thousand law enforcement officers, and each political 51 subdivision that has such an agency, shall issue their first annual 52 reports pursuant to subdivisions four and five of this section no later 53 than two years after the regulations promulgated pursuant to this 54 section have been finalized; 55 (c) each law enforcement agency that employs fifty or more but less 56 than four hundred law enforcement officers, and each political subdivi-S. 5093--A 5 1 sion that has such an agency, shall issue their first annual reports 2 pursuant to subdivisions four and five of this section no later than 3 three years after the regulations promulgated pursuant to this section 4 have been finalized; and 5 (d) each law enforcement agency that employs one or more but less than 6 fifty law enforcement officers, and each political subdivision that has 7 such an agency, shall issue their first annual reports pursuant to 8 subdivisions four and five of this section no later than four years 9 after the regulations promulgated pursuant to this section have been 10 finalized. 11 13. No later than one hundred eighty days after the effective date of 12 this section, the division, in consultation with the attorney general, 13 shall adopt regulations for the collection and reporting of data 14 required under this section, in a manner prescribed under section two 15 hundred two of the state administrative procedure act. The regulations 16 adopted shall specify all data to be reported, and provide standards, 17 definitions, and technical specifications not inconsistent with the 18 requirements of this section to ensure uniform reporting practices 19 across all reporting entities. To the extent possible, and consistent 20 with the requirements of this section, such regulations shall be compat- 21 ible with any similar federal data collection or reporting programs. 22 § 2. This act shall take effect immediately.