S T A T E   O F   N E W   Y O R K
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                                  2418

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2013
                               ___________

Introduced  by  M.  of A. CRESPO, STEVENSON -- read once and referred to
  the Committee on Codes

AN ACT to create a temporary state commission to examine and assess  the
  use of excessive force by law enforcement in the state of New York, to
  make recommendations relative to the alleviation thereof; to amend the
  county  law, in relation to providing for the appointment of a special
  prosecutor to investigate and prosecute charges of  police  misconduct
  and brutality and making an appropriation therefor

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

  Section 1. In New York state, as well as the rest of the  nation,  the
number  of  reported cases of the use of excessive force by law enforce-
ment has increased. The number of police misconduct  claims  filed  with
the  New  York  city  comptroller's office has been increasing since the
late 1980s from 977 complaints in 1987  to  more  than  2,000  in  1996.
Although  some of the allegations may be false or exaggerated, the sharp
increase in complaints is reason for concern,  especially  since  it  is
likely that much law enforcement misconduct goes unreported.
  Many  examples  of  excessive  use  of force by law enforcement can be
cited.  Two disturbing examples involve the notorious cases  of  Anthony
Baez  and  Abner  Louima.  Anthony  Baez,  a 29-year-old of Puerto Rican
descent, died of injuries sustained during his arrest in December  1994.
Witness  accounts  indicate  that the choke-hold used on Baez was unpro-
voked and unnecessary. Police officer Francis Livoti  was  sentenced  in
federal  court to seven years in prison for Baez's death. Officer Livoti
had 14 civilian complaints of brutality in his file and was convicted in
state court for beating a teenager in 1993 for driving a  go-cart  on  a
sidewalk.
  Four officers were charged with civil rights violations in the federal
case  of Abner Louima, a Haitian immigrant. According to the indictment,
the assault on Louima involved the officers "shoving a wooden stick into

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00914-01-3
              

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his rectum and mouth while his hands were handcuffed behind  his  back."
Louima  suffered  a  torn  bladder  and  intestine  and required several
surgeries to repair the damage. Two of the officers  were  also  charged
with  civil  rights  violations for falsely arresting eyewitness Patrick
Antoine, who saw Louima being  taken  into  custody.  In  addition,  the
indictment also charges an officer with beating Antoine outside the club
and with obstruction of justice for allegedly threatening Louima to keep
him from talking about the assault.
  In  its  1996  paper, "Police Brutality and Excessive Force in the New
York City Police Department," Amnesty  International  reports  that  the
information  it collected suggests that police brutality and unnecessary
force are widespread problems in New York city. The paper recommends  an
independent  inquiry  into  allegations of the use of excessive force by
the New York City Police Department to examine the  concerns  raised  in
this report.
  Although  the  Civilian Complaint Review Board investigates complaints
against the New York city police, it has had problems since  its  estab-
lishment  in 1993. The Civilian Complaint Review Board substantiates few
complaints, and when it has done so, the police commissioner  has  often
dismissed  them.  In  addition the board recently acknowledged that more
than 100 cases of police misconduct were substantiated  but  were  never
forwarded to the police department.
  S  2. a. A temporary state commission is hereby created to be known as
"the commission on the use of excessive force by law  enforcement".  The
commission  shall  consist of eleven members to be appointed as follows:
three members shall be appointed by the governor; two members  shall  be
appointed by the temporary president of the senate; two members shall be
appointed  by  the  minority  leader of the senate; two members shall be
appointed by the speaker of the  assembly;  and  two  members  shall  be
appointed  by  the  minority  leader  of  the assembly. Any vacancy that
occurs in the commission shall be filled in the same manner in which the
original appointment was made. The  commission  shall  select  from  its
membership a chair and a vice-chair.
  b. No member, officer or employee of the commission shall be disquali-
fied from holding any other public office or employment, nor shall he or
she  forfeit  any  such  office  or  employment  by reason of his or her
appointment under this section, notwithstanding the  provisions  of  any
general, special or local law, ordinance or city charter.
  S  3.  The commission may employ and at pleasure remove such personnel
as it may deem necessary for the performance of its  functions  and  fix
their compensation within the amounts made available therefor.
  S  4. The commission may meet within and without the state, shall hold
public hearings, and shall have all the powers of a legislative  commit-
tee pursuant to the legislative law.
  S  5.  The members of the commission shall receive no compensation for
their services but shall be allowed their actual and necessary  expenses
incurred in the performance of their duties pursuant to this act.
  S  6. To the maximum extent feasible, the commission shall be entitled
to request and receive and shall  utilize  and  be  provided  with  such
facilities,  resources  and  data  of  any  court, department, division,
board, bureau, commission or agency of the state or any political subdi-
vision thereof as it may reasonably request to carry  out  properly  its
powers and duties pursuant to this act.
  S  7.  The  commission  shall  undertake  a comprehensive study of the
existence of the use of excessive force by  law  enforcement  throughout
the  state  of  New  York  and  make recommendations with respect to the

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eradication of such actions, such recommendations shall include but  not
be  limited  to training, funding, recruiting requirements and any other
relevant data necessary to the elimination of police brutality.
  S 8. The commission shall make a report to the governor and the legis-
lature  of  its  findings, conclusions and recommendations no later than
two years after the effective date of this act and shall submit with its
report such legislative proposals as it deems necessary to implement its
recommendations.
  S 9. The commission shall continue in  existence  for  two  years,  at
which time it shall be deemed to be repealed.
  S  10.  The sum of one hundred thousand dollars ($100,000), or so much
thereof as may be necessary, is hereby appropriated to pay the  expenses
including  personal service, in carrying out the provisions of this act.
Such moneys shall be payable out of the state treasury  after  audit  by
and  on  the  warrant  of  the  comptroller  upon  vouchers certified or
approved by the chair or vice-chair of the temporary state commission on
the use of excessive force by law enforcement as prescribed by law.
  S 11. The county law is amended by adding a new section 702-b to  read
as follows:
  S 702-B. SPECIAL COUNTY PROSECUTOR FOR POLICE BRUTALITY OR MISCONDUCT.
1.  WHENEVER  THE  DISTRICT  ATTORNEY  OF ANY COUNTY RECEIVES A CRIMINAL
COMPLAINT, A CIVILIAN COMPLAINT OR AN ACCUSATORY INSTRUMENT ON A  POLICE
OFFICER,  AS  DEFINED  IN  SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW, A
SUPERIOR OR CRIMINAL COURT IN THE COUNTY WHEREIN THE ACTION  MAY  BECOME
TRIABLE  SHALL  HAVE  THE  AUTHORITY  TO APPOINT A SPECIAL PROSECUTOR TO
INVESTIGATE AND WHERE APPROPRIATE PROSECUTE CHARGES OF POLICE MISCONDUCT
OR BRUTALITY. THE SUPERIOR OR CRIMINAL COURT MAY  BY  ORDER  APPOINT  AN
ATTORNEY AT LAW HAVING AN OFFICE IN OR RESIDING IN THE COUNTY, TO ACT AS
SPECIAL PROSECUTOR, OR IN THE CASE OF ORLEANS COUNTY THE ATTORNEY AT LAW
MAY  BE APPOINTED FROM AN ADJOINING COUNTY, TO ACT AS SPECIAL PROSECUTOR
FOR POLICE BRUTALITY OR MISCONDUCT.
  2. WHEN A SPECIAL PROSECUTOR IS APPOINTED PURSUANT  TO  THIS  SECTION,
THE  APPOINTMENT  SHALL  BE FOR ALL PURPOSES, INCLUDING DISPOSITION, AND
ANY APPEALS.
  3. A SPECIAL PROSECUTOR  APPOINTED  PURSUANT  TO  THIS  SECTION  SHALL
POSSESS  ALL  THE POWERS OF AN ASSISTANT DISTRICT ATTORNEY UNDER SECTION
1.20 OF THE CRIMINAL PROCEDURE LAW, OR OF AN ASSISTANT ATTORNEY  GENERAL
PURSUANT TO ARTICLE FIVE OF THE EXECUTIVE LAW.
  S  12.    This  act shall take effect on the one hundred twentieth day
after it shall have become a  law;  provided,  however,  that  effective
immediately,  the addition, amendment and/or repeal of any rule or regu-
lation necessary for the implementation of this  act  on  its  effective
date  is  authorized  and directed to be made and completed on or before
such effective date.