Senate Bill S6690

2009-2010 Legislative Session

Authorizes law enforcement to use ethnic profiling when determining which individuals to stop, question, frisk, or search for suspicion of terrorist activity

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Archive: Last Bill Status - In Senate Committee Veterans, Homeland Security And Military Affairs Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 27, 2010	referred to veterans, homeland security and military affairs

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2009-S6690 (ACTIVE) - Details

Current Committee:: Senate Veterans, Homeland Security And Military Affairs
Law Section:: Executive Law
Laws Affected:: Add §837-s, Exec L; add §490.02, Pen L

2009-S6690 (ACTIVE) - Summary

Authorizes law enforcement to use ethnic profiling when determining which individuals to stop, question, frisk, or search for suspicion of terrorist activity.

2009-S6690 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6690

 TITLE OF BILL :
An act to amend the executive law and the penal law, in relation to
the prevention of terrorist attacks; and providing for the repeal of
such provisions upon the expiration thereof


 PURPOSE :
This bill would authorize any peace or police officer to consider
national origin as one of many - which could be used in identifying
persons who can be Initially stopped, questioned, frisked and/or
searched on furtherance of government s compelling interest in
deterring terrorist attacks.

 SUMMARY OF SPECIFIC PROVISIONS :
Section One of this bill would declare the legislative findings and
intent of this proposed legislation.

Section Two of this bill would amend the Executive law to add a new
section 837-s, to allow a peace officer or police officer to consider
the apparent national origin of a suspect as one of the many factors
in a potential terrorist suspect profile which he or she could use to
identify persons who could be stopped, questioned, frisked and/or
searched in furtherance of the government's compelling interest in
deterring terrorist attacks.

For purposes of this section, "potential terrorist suspect profile"
would mean multiple factors which determine the existence of a
reasonable individualized suspicion and/or probable cause and provide
cause for a peace officer or police officer to lawfully justify the
stopping of a motor vehicle, the stopping and questioning of an
individual, and/or the stopping and frisking of an individual. In
furtherance of the government's compelling interest in deterring
terrorist attacks. For purposes of this section "national origin"
would include "ancestry".

One of these factors may be the national origin of the individual,
particularly a good faith suspicion that the individual to be stopped,
questioned, frisked or searched has ties to any country which has had
a history of maintaining a terrorist organization, including, but not
limited to, Afghanistan, Pakistan, Iran, Syria, Yemen, Lebanon, Iraq,
Egypt, Saudi Arabia, Libya, Nigeria, Somalia, Algeria, Russia, Peru,
Philippines, Mali, Indonesia. or Malaysia

Section Three of this bill would amend the Penal law, to add a new
section 490.02 to provide for liability protection for those who must
use the terrorist suspect profiling performed pursuant to the above
standards.

 JUSTIFICATION :
The Supreme Court of the United States held in Grutter v. Bollinger,
539 U.S. 308 (2003), that factors such as race and ethnicity,
consistent with the Equal Protection clause of the U.S. Constitution,
can be considered in making governmental decisions provided that:

(1) Such consideration serves a "compelling governmental interest" and

(2) That race or ethnicity is not the only factor to be considered in
making the decisions.

Preventing terrorist attacks on our citizens - including not only
possible deaths and injuries, but also the resulting economic harm and
devastation - is the very definition of a compelling governmental
interest. Accordingly, this compelling governmental interest demands -
since both law enforcement resources and the time necessary to make an
initial decision regarding stopping and questioning are very limited -
the identification of potential terrorist suspect as effectively and
efficiently as possible so that they may be stopped, questioned,
frisked, or searched. This is particularly the case when the suspect
has ties to countries which maintain or support terrorist
organizations.

The recent events of Northwest Flight 253, where a terrorist sought to
blow up an airline bound for Detroit, on Christmas Day 2009, only
highlights the need for this type of legislation. For although that
incident, due to the brave actions of fellow passengers, ended without
horrific tragedy, it clearly demonstrated that our law enforcement
officials must be provided with the ability to detain and prevent
terrorist suspects from carrying out their murderous plans

By its very text, this bill does not seek authorize the practice of
racial or ethnic discrimination. Rather it seeks to have law
enforcement to be permitted to operate in the real world, where
terrorists do in fact frequently come from certain nationalities and
backgrounds, which support and maintain terrorist organizations.
Through this bill, our law enforcement officials will no longer have
their hands inappropriately tied in their mission to protect us, due
to a misplaced policy of political correctness,

As a result, this bill seeks, in the interest of ensuring the most
effective terrorist prevention which meets U.S. constitutional
protections, to enact a law which authorizes the effective use of
potential suspect terrorist profiles.

 LEGISLATIVE HISTORY :
This is a new bill in the Senate

 FISCAL IMPLICATIONS :
None noted.

 EFFECTIVE DATE :
This act would take effect immediately and would sunset and be deemed
repealed five years after it shall have become a law.

2009-S6690 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6690

                            I N  S E N A T E

                            January 27, 2010
                               ___________

Introduced  by  Sens. LEIBELL, MAZIARZ, MORAHAN, PADAVAN, SEWARD, VOLKER
  -- read twice and ordered printed, and when printed to be committed to
  the Committee on Veterans, Homeland Security and Military Affairs

AN ACT to amend the executive law and the penal law, in relation to  the
  prevention  of terrorist attacks; and providing for the repeal of such
  provisions upon the expiration thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative  findings. The legislature finds and declares
that preventing terrorist attacks on our citizens - including  not  only
possible  deaths  and  injuries, but also crushing economic harm or even
chaos - is a compelling governmental interest.
  The legislature  further  finds  and  declares  that  since  both  law
enforcement resources and the time necessary to make an initial decision
regarding  stopping  and  questioning  are very limited, this compelling
governmental interest demands that law enforcement must be afforded  the
means  of  identification of potential terrorist suspects as effectively
and efficiently as possible so that they  may  be  stopped,  questioned,
frisked, and/or searched.
  The legislature also finds and declares that homeland security experts
have  suggested  that,  while no one single factor is definitive, a wide
variety of factors, such as the following, can help  identify  potential
terrorism suspects:
  1. wearing heavy clothing in warm weather;
  2.  carrying  a  briefcase, duffle bag or backpack with protrusions or
visible wires;
  3. displaying nervousness and/or inappropriate sweating;
  4. an inability or unwillingness to make eye contact;
  5. chemical burns on clothing or stains on hands.
  For this reason, law enforcement personnel are often asked to look for
and consider such factors in determining which persons  to  stop,  ques-
tion, frisk and/or search.
  The  legislature  additionally  finds  and declares that many homeland
security experts have suggested, and the history of modern terrorism has

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

                                                           LBD15354-03-0

S. 6690                             2

confirmed, that the national origin of a  person  can  also  be  a  very
important,  if  not  crucial  factor,  along with others, in identifying
potential terrorist suspects.  Accordingly,  homeland  security  experts
have  suggested,  and such experience has confirmed, that many terrorist
acts are performed by radical individuals  with  national  origins  from
countries  such  as  Afghanistan, Pakistan, Iran, Syria, Yemen, Lebanon,
Iraq, Egypt, Saudi Arabia, Libya,  Nigeria,  Somalia,  Algeria,  Russia,
Peru,  Philippines,  Mali, Indonesia, and Malaysia. As a result, the use
of ethnicity serves a compelling governmental interest  in  helping  law
enforcement  personnel  to  determine effectively and efficiently, along
with other factors,  which  persons  to  stop,  question,  frisk  and/or
search.
  The  legislature  further  finds  and  determines, that the good faith
questioning or searching of a suspicious  terrorist  suspect,  has  only
momentary  consequences for innocent persons, and can prevent monumental
and enormous public harm and injury, unlike other governmental decisions
upheld by the Supreme Court of the United States, which have lasting and
very significant adverse consequences for the compelling interest use of
ethnic or racial decisions.
  Therefore, the legislature finds that, in the interest of ensuring the
most effective terrorist prevention which meets United  States  and  New
York  State  constitutional  protections, it is necessary to enact a law
which will authorize law  enforcement  personnel  to  consider  national
origin as one of many factors which could be used in identifying persons
who can be initially stopped, questioned, frisked and/or searched.
  S  2.  The  executive  law is amended by adding a new section 837-s to
read as follows:
  S 837-S. POTENTIAL TERRORIST SUSPECT PROFILE. 1. FOR PURPOSES OF  THIS
SECTION,  "POTENTIAL  TERRORIST  SUSPECT  PROFILE"  SHALL  MEAN MULTIPLE
FACTORS WHICH DETERMINE THE EXISTENCE  OF  A  REASONABLE  INDIVIDUALIZED
SUSPICION AND/OR PROBABLE CAUSE AND PROVIDE CAUSE FOR A PEACE OFFICER OR
POLICE  OFFICER TO LAWFULLY JUSTIFY THE STOPPING OF A MOTOR VEHICLE, THE
STOPPING AND QUESTIONING OF  AN  INDIVIDUAL,  AND/OR  THE  STOPPING  AND
FRISKING OF AN INDIVIDUAL, IN FURTHERANCE OF THE GOVERNMENT'S COMPELLING
INTEREST IN DETERRING TERRORIST ATTACKS. ONE OF THESE FACTORS MAY BE THE
NATIONAL  ORIGIN  OF THE INDIVIDUAL, PARTICULARLY A GOOD FAITH SUSPICION
THAT THE INDIVIDUAL TO BE STOPPED, QUESTIONED, FRISKED OR  SEARCHED  HAS
TIES  TO  ANY COUNTRY WHICH HAS HAD A HISTORY OF MAINTAINING A TERRORIST
ORGANIZATION, INCLUDING, BUT  NOT  LIMITED  TO,  AFGHANISTAN,  PAKISTAN,
IRAN,  SYRIA, YEMEN, LEBANON, IRAQ, EGYPT, SAUDI ARABIA, LIBYA, NIGERIA,
SOMALIA, ALGERIA, RUSSIA, PERU, PHILIPPINES, MALI, INDONESIA, OR  MALAY-
SIA.
  2.  FOR  PURPOSES  OF  THIS  SECTION  "NATIONAL  ORIGIN" SHALL INCLUDE
"ANCESTRY".
  3. NOTWITHSTANDING ANY STATE OR LOCAL LAW, RULE OR REGULATION  TO  THE
CONTRARY,  A PEACE OFFICER OR POLICE OFFICER, AS DEFINED IN SECTION 1.20
OF THE CRIMINAL PROCEDURE LAW, MAY CONSIDER THE  NATIONAL  ORIGIN  OF  A
SUSPECT  AS ONE OF MANY FACTORS IN A POTENTIAL TERRORIST SUSPECT PROFILE
WHICH HE OR SHE COULD USE TO IDENTIFY  PERSONS  WHO  COULD  BE  STOPPED,
QUESTIONED,  FRISKED  AND/OR SEARCHED IN FURTHERANCE OF THE GOVERNMENT'S
COMPELLING INTEREST IN DETERRING TERRORIST ATTACKS;  PROVIDED,  HOWEVER,
THAT  SUCH  NATIONAL  ORIGIN  MAY  NOT BE THE SOLE CRITERIA UTILIZED FOR
MAKING THE DECISION.  RATHER, THE NATIONAL ORIGIN OF THE INDIVIDUAL  MAY
BE  UTILIZED  AS ONLY ONE OF SEVERAL FACTORS, AND SUCH PEACE OFFICERS OR
POLICE OFFICERS  SHALL  ENGAGE  IN  A  HIGHLY  INDIVIDUALIZED,  HOLISTIC
CONSIDERATION  OF  EACH PERSON'S TOTALITY OF CHARACTERISTICS AND FACTORS

S. 6690                             3

IN CARRYING OUT HIS OR HER LAW ENFORCEMENT FUNCTIONS,  INCLUDING  DETER-
MINING WHOM TO STOP, QUESTION, FRISK AND/OR SEARCH.
  S  3.  The penal law is amended by adding a new section 490.02 to read
as follows:
S 490.02 LIABILITY PROTECTION FOR NATIONAL ORIGIN PROFILING.
  1. ANY PERSON WHO STOPS, QUESTIONS, FRISKS OR SEARCHES AN  INDIVIDUAL,
WITH  THE INTENTION OF PREVENTING AN ACT OF TERRORISM, UPON A GOOD FAITH
SUSPICION THAT THE INDIVIDUAL TO  BE  STOPPED,  QUESTIONED,  FRISKED  OR
SEARCHED, HAS TIES TO ANY COUNTRY WHICH HAS HAD A HISTORY OF MAINTAINING
A  TERRORIST  ORGANIZATION,  INCLUDING, BUT NOT LIMITED TO, AFGHANISTAN,
PAKISTAN, IRAN, SYRIA, YEMEN, LEBANON, IRAQ, EGYPT, SAUDI ARABIA, LIBYA,
NIGERIA, SOMALIA, ALGERIA, RUSSIA, PERU, PHILIPPINES,  MALI,  INDONESIA,
OR  MALAYSIA, SHALL BE IMMUNE FROM CIVIL AND CRIMINAL LIABILITY FOR SUCH
STOP, QUESTIONING, FRISK OR SEARCH.
  2. AN ACTION ALLEGING THAT A STOP, QUESTIONING, FRISK OR SEARCH  BY  A
PERSON  OF  AN  INDIVIDUAL,  WITH  THE INTENTION OF PREVENTING AN ACT OF
TERRORISM, UPON A  GOOD  FAITH  SUSPICION  THAT  THE  INDIVIDUAL  TO  BE
STOPPED,  QUESTIONED, FRISKED OR SEARCHED, HAS TIES TO ANY COUNTRY WHICH
HAS HAD A HISTORY OF MAINTAINING A  TERRORIST  ORGANIZATION,  INCLUDING,
BUT  NOT LIMITED TO, AFGHANISTAN, PAKISTAN, IRAN, SYRIA, YEMEN, LEBANON,
IRAQ, EGYPT, SAUDI ARABIA, LIBYA,  NIGERIA,  SOMALIA,  ALGERIA,  RUSSIA,
PERU,  PHILIPPINES,  MALI,  INDONESIA, OR MALAYSIA, WAS NOT MADE IN GOOD
FAITH, MUST BE PLED WITH PARTICULARITY PURSUANT TO  SUBDIVISION  (B)  OF
RULE THREE THOUSAND SIXTEEN OF THE CIVIL PRACTICE LAW AND RULES.
  S  4.  This  act shall take effect immediately and shall expire and be
deemed repealed 5 years after such date.

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Senate Bill S6690

Sponsored By

Archive: Last Bill Status - In Senate Committee Veterans, Homeland Security And Military Affairs Committee

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co-Sponsors

2009-S6690 (ACTIVE) - Details

2009-S6690 (ACTIVE) - Summary

2009-S6690 (ACTIVE) - Sponsor Memo

2009-S6690 (ACTIVE) - Bill Text download pdf

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Sponsored By

Vincent L. Leibell

Archive: Last Bill Status - In Senate Committee Veterans, Homeland Security And Military Affairs Committee

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co-Sponsors

Martin J. Golden

George D. Maziarz

Thomas P. Morahan

Frank Padavan

2009-S6690 (ACTIVE) - Details

2009-S6690 (ACTIVE) - Summary

2009-S6690 (ACTIVE) - Sponsor Memo

2009-S6690 (ACTIVE) - Bill Text download pdf

Comments