Senate Bill S5635

2013-2014 Legislative Session

Relates to the prevention of terrorist attacks

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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 08, 2014	referred to veterans, homeland security and military affairs
May 30, 2013	referred to veterans, homeland security and military affairs

2013-S5635 (ACTIVE) - Details

Current Committee:: Senate Veterans, Homeland Security And Military Affairs
Law Section:: Executive Law
Laws Affected:: Add §837-s, Exec L; add §140.60, CP L; add §490.02, Pen L

2013-S5635 (ACTIVE) - Summary

Relates to the prevention of terrorist attacks.

2013-S5635 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5635

TITLE OF BILL:  An act to amend the executive law, the criminal
procedure law, and the penal law, in relation to the prevention of
terrorist attacks

PURPOSE:  This bill would authorize any peace or police officer to
consider the national origin as one of many factors which could be
used in identifying persons who can be initially stopped, questioned,
frisked and/or searched in 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: provided that the apparent national
origin cannot be the sole criteria utilized for making the decision.

Section Three of this bill would amend the Criminal Procedure Law, to
add a new section 140.60, 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: provided that the apparent
national origin cannot be the sole criteria utilized for making the
decision.

Section Four of this bill would amend the Penal Law to add a new
section 490.02, to provide that a person who makes a good faith stop
of a person based upon their national origin, pursuant to section
837-s of the Executive Law or section 140.60 of the criminal procedure
law, would be immune from from civil and criminal liability for such
stop, questioning, frisk or search.

JUSTIFICATION:  The Supreme Court of the United States held in Grutter
v. Bollinger, 539 U.S. 306 (2003), that factors such as race,
ethnicity and national origin can, consistent with the Equal
Protection clause of the U.S Constitution, be considered in making
governmental decisions provided that:

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

(2) That race, ethnicity or national origin 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 -
that 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, is an important tool to prevent
terrorist attack.

The recent events of the Boston Marathon Attacks, only highlights the
need for this type of legislation. For that tragedy 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. Being able to stop, question and search
terrorist suspects, when law enforcement has 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.

By its very text, this bill does not seek authorize the a 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, and 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.

2013-S5635 (ACTIVE) - Bill Text download pdf

                            
                    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:

  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 uncharacteristic nervousness and/or inappropriate sweat-
ing;
  4. An inability or unwillingness to make eye contact; and/or
  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

  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 further  suggested,  and  the  history  of  modern
terrorism  has  confirmed, that the national origin of a person can also
be a very important, if not crucial factor, along with others, in  iden-
tifying  potential  terrorist  suspects.  Accordingly, homeland security
experts have additionally suggested, and such experience has  confirmed,
that  many  terrorism  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, Soma-
lia, Algeria, Russia, Peru, Philippines, Mali, Indonesia, and  Malaysia.
As a result, the use of national origin serves a compelling governmental
interest  in  helping law enforcement personnel to determine effectively
and efficiently, along with other factors, which persons to stop,  ques-
tion, 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 fines 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.  NOTWITHSTANDING  ANY
STATE OR LOCAL LAW, RULE OR REGULATION TO THE CONTRARY:
  1. FOR PURPOSES OF THIS SECTION, "POTENTIAL TERRORIST SUSPECT PROFILE"
SHALL  MEAN  MULTIPLE FACTORS WHICH DETERMINE THE EXISTENCE OF A REASON-
ABLE 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 MALAYSIA.
  2.  FOR  PURPOSES  OF  THIS  SECTION  "NATIONAL  ORIGIN" SHALL INCLUDE
"ANCESTRY".
  3. 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,

S. 5635                             3

THAT SUCH NATIONAL ORIGIN SHALL 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
IN  CARRYING  OUT HIS OR HER LAW ENFORCEMENT FUNCTIONS, INCLUDING DETER-
MINING WHO TO STOP, QUESTION, FRISK AND/OR SEARCH.
  S 3. The criminal procedure law is amended by  adding  a  new  section
140.60 to read as follows:
S 140.60 POTENTIAL TERRORIST SUSPECT PROFILE.
  NOTWITHSTANDING  ANY  STATE  OR  LOCAL  LAW, RULE OR REGULATION TO THE
CONTRARY:
  1. FOR PURPOSES OF THIS SECTION, "POTENTIAL TERRORIST SUSPECT PROFILE"
SHALL MEAN MULTIPLE FACTORS WHICH DETERMINE THE EXISTENCE OF  A  REASON-
ABLE  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 MALAYSIA.
  2. FOR PURPOSES  OF  THIS  SECTION  "NATIONAL  ORIGIN"  SHALL  INCLUDE
"ANCESTRY".
  3.  A  PEACE  OFFICER OR POLICE OFFICER, AS DEFINED IN SECTION 1.20 OF
THIS CHAPTER, 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  SHALL 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 IN CARRYING OUT HIS  OR
HER LAW ENFORCEMENT FUNCTIONS, INCLUDING DETERMINING WHOM TO STOP, QUES-
TION, FRISK AND/OR SEARCH.
  S  4.  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  OR  AN  INDIVIDUAL,  WITH  THE INTENTION OF PREVENTING AN ACT OF
TERRORISM, UPON A  GOOD  FAITH  SUSPICION  THAT  THE  INDIVIDUAL  TO  BE

S. 5635                             4

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 5. This act shall take effect immediately.

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Senate Bill S5635

Sponsored By

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

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2013-S5635 (ACTIVE) - Details

2013-S5635 (ACTIVE) - Summary

2013-S5635 (ACTIVE) - Sponsor Memo

2013-S5635 (ACTIVE) - Bill Text download pdf

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Sponsored By

Greg Ball

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

Actions

2013-S5635 (ACTIVE) - Details

2013-S5635 (ACTIVE) - Summary

2013-S5635 (ACTIVE) - Sponsor Memo

2013-S5635 (ACTIVE) - Bill Text download pdf

Comments