NY State Senate Bill 2019-S8669

Archive: Last Bill Status - In Senate Committee Rules 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jul 02, 2020	referred to rules

co-Sponsors

2019-S8669 (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Civil Rights Law
Laws Affected:: Add Art 3-A §§30 - 35, Civ Rts L; amd R3211, CPLR

2019-S8669 (ACTIVE) - Summary

Relates to filling the void left by the expansive and overbroad applicability of the qualified immunity doctrine that operates as a near absolute shield to civil liability for public officials and ensure that state officials are justly held accountable for violating an individual's rights, privileges and immunities under state law.

2019-S8669 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8669

SPONSOR: MYRIE
 
TITLE OF BILL:

An act to amend the civil rights law and the civil practice law and
rules, in relation to filling the void left by the expansive and over-
broad applicability of the qualified immunity doctrine that operates as
a near absolute shield to civil liability for public officials and
ensure that state officials are justly held accountable for violating an
individual's rights, privileges and immunities under state law

 
PURPOSE:

To narrow the applicability of the doctrine of qualified immunity to
provide greater accountability for public officials who violate an indi-
vidual's rights under state law.

 
SUMMARY OF PROVISIONS:

Section 1 provides this act be known as "The Restoring Accountability

and Civil Equity Act," or The RACE Act.

Section 2 amends section the civil rights law, by adding a new Article
3-a.

Section 30 establishes the right of individuals who have had their
rights, immunities, or privileges guaranteed under the laws and Consti-
tution of New York State violated by a public official to bring legal
action against such person. Section 30, subsection b allows the family,
guardian, or other personal representative of the injured party to bring
legal action on behalf of the injured party if they are deceased, inca-
pacitated, or otherwise unavailable. Subsection c allows the attorney
general to bring a civil action against a public official who has
violated an individual's rights on behalf of the injured party.

Section 31 requires the proceedings be brought in a court of competent
jurisdiction within the state.

Section 32 establishes that the burden of proof for such cases is the
preponderance of the evidence standard. Subsection b requires that if a
defendant raises a factual defense, they bear the burden of persuasion
and must establish preponderance of the evidence in their defense.

Section 33 allows that the defendant can raise the "exemption" defense
if he or she can affirmatively show that they were not on notice that
their conduct would result in the deprivation or interference of an
individual's rights. Subsection I requires that the exemption defense be
proven by clear and convincing evidence. Subsection 2 sets forth the
types of evidence a judge may consider when allowing a defendant's use
of the "exemption" defense, and the evidence that may constitute suffi-
cient notice on behalf of the defendant.  Subsection 3 establishes that
if a defendant successfully uses the "exemption" defense, the plaintiff
is entitled to recover some damages from the defendant's employer. Para-
graph b establishes that the "exemption" defense shall be unavailable to
defendants who deprived or interfered with an individual's guaranteed
rights intentionally, knowingly, or recklessly. Paragraph c requires
that while deciding whether the "exemption" defense applies the court
shall consider all pleadings in the light most favorable to the claim-
ant, and take all factual pleadings in the complaint as true, and deter-
mine whether there was a deprivation or interference of an individual's
rights. Paragraph d limits discovery to information necessary to deter-
mine if an "exemption' defense is applicable.  Paragraph e requires
legal defense of exemption be raised in a pre-answer motion pursuant to
the newly added Civil Practice Law and Rules Rule 3211(a)(12).

Section 34 establishes that any actions or defense brought under this
article, are independent of any federal action.

Section 35 establishes that civil action may be brought under this arti-
cle for monetary damages, or other relief deemed appropriate by the
court. Paragraph b provides that punitive damages may be awarded if it
is proven by clear and convincing evidence that the defendant's conduct
was motivated by the victim's race, gender, religion, sexual orien-
tation, nationality, ethnicity, or disability. Paragraph c provides that
the court may award reasonable attorney's fees to the prevailing party,
in addition to other forms of relief.

Section 3 sets forth the effective date.

 
JUSTIFICATION:

Countless people in this country have been brutalized, injured and
killed by police officers. The harms of this official abuse have prima-
rily impacted black and brown people who are most vulnerable to that
harm and least able to obtain redress under current law. Indeed, the
mainstay of what narrow forms of legal redress have been available under
federal law pursuant to 42 USC section 1983, under the doctrine of qual-
ified immunity, have been all but eliminated by the expansive interpre-
tation of the doctrine into the near equivalent of absolute immunity.
This bill seeks to ensure that people who suffer unjustly at the hands
of law enforcement will find a remedy under New York State law. To
achieve that necessary result, the bill is intended to operate independ-
ently of federal law and the federal doctrine of qualified immunity to
the extent that a staff official or officials are acting under the color
of the state constitution and the law of the state.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

To be determined

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.

2019-S8669 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8669
 
                             I N  S E N A T E
 
                               July 2, 2020
                                ___________
 
 Introduced  by  Sens.  MYRIE,  BAILEY, HOYLMAN -- read twice and ordered
   printed, and when printed to be committed to the Committee on Rules
 
 AN ACT to amend the civil rights law and  the  civil  practice  law  and
   rules, in relation to filling the void left by the expansive and over-
   broad  applicability  of the qualified immunity doctrine that operates
   as a near absolute shield to civil liability for public officials  and
   ensure  that state officials are justly held accountable for violating
   an individual's rights, privileges and immunities under state law
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. This act shall be known and may be cited as "The Restoring
 Accountability and Civil Equity Act," or The RACE Act.
   § 2. The civil rights law is amended by adding a new  article  3-A  to
 read as follows:
                                ARTICLE 3-A
             THE RESTORING ACCOUNTABILITY AND CIVIL EQUITY ACT
 SECTION 30. LIABILITY FOR RIGHTS VIOLATIONS.
         31. PROCEEDINGS.
         32. BURDEN OF PROOF.
         33. LEGAL DEFENSE OF "EXEMPTION".
         34. PRE-EMPTION.
         35. REMEDIES.
   §  30.  LIABILITY  FOR RIGHTS VIOLATIONS. A. ANY PERSON WHO, UNDER THE
 COLOR OF ANY STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE,  OF  THIS
 STATE  OR  ANY  OF ITS POLITICAL SUBDIVISIONS, SUBJECTS, OR CAUSES TO BE
 SUBJECTED, ANY PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION
 OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND
 LAWS OF THIS STATE, OR WHOSE EXERCISE  OR  ENJOYMENT  OF  THOSE  RIGHTS,
 PRIVILEGES  OR  IMMUNITIES  HAS  BEEN INTERFERED WITH OR ATTEMPTED TO BE
 INTERFERED WITH, BY THREATS, INTIMIDATION OR COERCION BY A PERSON ACTING
 UNDER THE COLOR OF ANY STATUTE, ORDINANCE, REGULATION, CUSTOM, OR USAGE,
 OF THIS STATE OR ANY OF ITS POLITICAL SUBDIVISIONS, SHALL BE  LIABLE  TO
 THE  PARTY  INJURED IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER
 PROCEEDING FOR REDRESS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD16780-02-0

 S. 8669                             2
 
   B. IF THE INJURED  PARTY  IS  INCAPACITATED,  DECEASED,  OR  OTHERWISE
 UNAVAILABLE  AS  A  MATTER OF LAW, AN ACTION UNDER SUBDIVISION A OF THIS
 SECTION MAY BE BROUGHT BY AND IN  THE  NAME  OF  THE  SURVIVING  SPOUSE,
 CHILD,  PARENT  OR  GUARDIAN,  OR PERSONAL REPRESENTATIVE OF THE INJURED
 PARTY  AND  ON  BEHALF OF THE SPOUSE, CHILDREN OR PARENTS, OR IF NONE OF
 THESE SURVIVE, ON BEHALF OF THE INJURED PARTY'S ESTATE.
   C. IF A PERSON, ACTING UNDER THE  COLOR  OF  ANY  STATUTE,  ORDINANCE,
 REGULATION,  CUSTOM,  OR  USAGE,  OF  THIS STATE OR ANY OF ITS POLITICAL
 SUBDIVISIONS, SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY OTHER PERSON  THE
 DEPRIVATION  OF  ANY  RIGHTS,  PRIVILEGES,  OR IMMUNITIES SECURED BY THE
 CONSTITUTION AND LAWS OF THIS STATE, OR INTERFERES WITH OR  ATTEMPTS  TO
 INTERFERE  WITH THE EXERCISE OR ENJOYMENT OF THOSE RIGHTS, PRIVILEGES OR
 IMMUNITIES SECURED BY THE  CONSTITUTION  AND  LAWS  OF  THIS  STATE,  BY
 THREATS,  INTIMIDATION  OR  COERCION,  THE  ATTORNEY GENERAL MAY BRING A
 CIVIL ACTION FOR DAMAGES, INJUNCTIVE RELIEF OR OTHER APPROPRIATE RELIEF.
 THE CIVIL ACTION SHALL BE BROUGHT IN THE NAME OF THE STATE  AND  MAY  BE
 BROUGHT ON BEHALF OF THE INJURED PARTY. IF THE ATTORNEY GENERAL PROCEEDS
 WITH  AND  PREVAILS  IN  AN ACTION BROUGHT PURSUANT TO THIS SECTION, THE
 COURT SHALL ORDER THE DISTRIBUTION  OF  ANY  AWARD  OF  DAMAGES  TO  THE
 INJURED  PARTY  AND  SHALL AWARD REASONABLE ATTORNEY'S FEES AND COSTS TO
 THE ATTORNEY GENERAL.
   § 31. PROCEEDINGS. A. AN ACTION BROUGHT PURSUANT TO THIS ARTICLE SHALL
 BE FILED IN A COURT OF COMPETENT JURISDICTION WITHIN THE STATE.
   B. UPON APPLICATION OF ANY PARTY, A JURY TRIAL SHALL BE DIRECTED.
   § 32. BURDEN OF PROOF. A. THE STANDARD OF PROOF THAT  APPLIES  TO  ALL
 ACTIONS  BROUGHT UNDER THIS ARTICLE IS THE PREPONDERANCE OF THE EVIDENCE
 STANDARD.
   B. WHERE A DEFENDANT HAS RAISED  A  FACTUAL  DEFENSE,  THAT  DEFENDANT
 BEARS THE BURDEN OF PERSUASION AND MUST ESTABLISH THE DEFENSE BY PREPON-
 DERANCE OF THE EVIDENCE.
   § 33. LEGAL DEFENSE OF "EXEMPTION". A. A DEFENDANT CAN RAISE THE LEGAL
 DEFENSE OF EXEMPTION WHERE THAT DEFENDANT CAN AFFIRMATIVELY SHOW THAT HE
 OR  SHE WAS NOT ON NOTICE THAT HIS OR HER COURSE OF CONDUCT WOULD RESULT
 IN THE DEPRIVATION, INTERFERENCE OR ATTEMPTED INTERFERENCE OF  AN  INDI-
 VIDUAL'S  RIGHTS,  PRIVILEGES  OR IMMUNITIES SECURED BY THE CONSTITUTION
 AND LAWS OF THIS STATE.
   1. A DEFENDANT MUST ESTABLISH EVIDENCE OF LACK OF NOTICE BY CLEAR  AND
 CONVINCING EVIDENCE.
   2.  IN  DETERMINING  WHETHER  A  DEFENDANT IS ENTITLED TO A DEFENSE OF
 EXEMPTION, THE JUDGE MAY CONSIDER THE DEFENDANT'S LEVEL  OF  FORMAL  AND
 INFORMAL TRAINING, EXPERIENCE, AND EXPOSURE TO LEGAL INFORMATION. PROBA-
 TIVE  EVIDENCE  THAT A DEFENDANT WAS ON NOTICE COULD INCLUDE, BUT IS NOT
 LIMITED TO, THE FOLLOWING SOURCES:
   I. TRAINING MANUALS AND GUIDELINES;
   II. DEPARTMENT POLICIES;
   III. EDUCATIONAL BACKGROUND AND EXPOSURE TO STATUTORY LAW, ADMINISTRA-
 TIVE RULES AND REGULATIONS, AND CASE LAW;
   IV. VERBAL INSTRUCTIONS;
   V. INTERNAL MEMORANDA REFLECTING PRIOR PRACTICE; AND
   VI. PRIOR DISCIPLINARY ACTIONS OR INVESTIGATIONS, EITHER INVOLVING THE
 DEFENDANT OR INVOLVING OTHER MEMBERS OF THE DEFENDANT'S ORGANIZATION, IF
 THAT INFORMATION WAS KNOWN TO THE DEFENDANT.
   3. WHERE A DEFENDANT ESTABLISHES, BY CLEAR  AND  CONVINCING  EVIDENCE,
 THAT  HE  OR  SHE IS ENTITLED TO THE DEFENSE OF EXEMPTION, THE PLAINTIFF
 SHALL BE ENTITLED TO RECOVER THE SAME DAMAGES UNDER  THIS  ARTICLE  FROM

 S. 8669                             3
 
 THE  DEFENDANT'S EMPLOYER AS THE PLAINTIFF WOULD HAVE RECOVERED FROM THE
 DEFENDANT.
   B.  THE DEFENSE OF EXEMPTION SHALL BE UNAVAILABLE TO ANY DEFENDANT WHO
 ENGAGES IN A COURSE OF CONDUCT THAT SUBJECTS, OR CAUSES TO BE SUBJECTED,
 ANY OTHER PERSON THE DEPRIVATION, INTERFERENCE OR ATTEMPTED INTERFERENCE
 OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND
 LAWS OF THIS STATE, IF HE OR SHE  ENGAGED  IN  THAT  COURSE  OF  CONDUCT
 INTENTIONALLY, KNOWINGLY OR RECKLESSLY.
   C.  IN  DECIDING  WHETHER  THE DEFENSE OF EXEMPTION APPLIES, THE COURT
 SHALL:
   1. CONSIDER ALL THE PLEADINGS IN THE LIGHT MOST FAVORABLE TO THE  NON-
 MOVANT AND TAKE ALL FACTUAL PLEADINGS IN THE COMPLAINT AS TRUE; AND
   2.  MAKE A DETERMINATION AS TO WHETHER THERE WAS A DEPRIVATION, INTER-
 FERENCE OR ATTEMPTED INTERFERENCE WITH AN  INDIVIDUAL'S  RIGHTS,  PRIVI-
 LEGES,  OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS OF THIS STATE
 APPLYING THE CONSIDERATIONS IN PARAGRAPH ONE OF  THIS  SUBDIVISION.  THE
 COURT  SHALL  NOT  BYPASS  THIS INQUIRY TO SIMPLY DECIDE THE QUESTION OF
 WHETHER A DEFENDANT WAS ON NOTICE THAT HIS  OR  HER  COURSE  OF  CONDUCT
 WOULD  RESULT IN THE DEPRIVATION, INTERFERENCE OR ATTEMPTED INTERFERENCE
 OF AN INDIVIDUAL'S RIGHTS,  PRIVILEGES  OR  IMMUNITIES  SECURED  BY  THE
 CONSTITUTION AND LAWS OF THIS STATE.
   D.  LIMITED  DISCOVERY  CONFINED  TO  INFORMATION NECESSARY TO RESOLVE
 WHETHER THE DEFENSE OF EXEMPTION IS APPLICABLE IS APPROPRIATE  WHEN  THE
 RECORD AS PRESENTED BY DEFENDANT IN ASSERTING THIS DEFENSE IS INADEQUATE
 AND  THE  PARTY  OPPOSING  THE APPLICABILITY OF THE DEFENSE DEMONSTRATES
 THAT IT CAN SHOW, THROUGH DISCOVERY, THAT THE DEFENDANT  WAS  ON  NOTICE
 THAT  HIS  OR  HER  COURSE  OF  CONDUCT WOULD RESULT IN THE DEPRIVATION,
 INTERFERENCE OR ATTEMPTED INTERFERENCE OF AN INDIVIDUAL'S RIGHTS, PRIVI-
 LEGES OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS OF THIS STATE.
   E. THE LEGAL DEFENSE OF EXEMPTION IS AN AFFIRMATIVE DEFENSE THAT  MUST
 BE  RAISED  PURSUANT TO PARAGRAPH TWELVE OF SUBDIVISION (A) AND SUBDIVI-
 SION (E) OF RULE THREE THOUSAND TWO HUNDRED ELEVEN OF THE CIVIL PRACTICE
 LAW AND RULES PRIOR TO THE DEFENDANT ANSWERING THE COMPLAINT,  OTHERWISE
 THE DEFENSE SHALL BE WAIVED.
   §  34.  PRE-EMPTION. ANY ACTION, AND DEFENSES HEREUNDER, BROUGHT UNDER
 THIS ARTICLE BORNE OF FACTS THAT MAY ALSO GIVE RISE TO AN  ACTION  UNDER
 42  U.S.C.  §  1983  ARE INDEPENDENT OF ANY FEDERAL ACTION, AND DEFENSES
 THEREUNDER, WHERE STATE LAW PROVIDES THE STANDARD  OF  CONDUCT  FOR  THE
 OFFICIAL  ACTING  UNDER THE COLOR OF ANY STATUTE, ORDINANCE, REGULATION,
 CUSTOM, OR USAGE, OF THIS STATE OR ANY OF ITS POLITICAL SUBDIVISIONS.
   § 35. REMEDIES. A. A CIVIL ACTION UNDER THIS ARTICLE  CAN  BE  BROUGHT
 FOR  MONETARY  DAMAGES,  INJUNCTIVE  RELIEF OR ANY OTHER RELIEF THAT THE
 COURT DEEMS APPROPRIATE.
   B. PUNITIVE DAMAGES MAY BE AWARDED IN ACTIONS UNDER THIS ARTICLE WHERE
 IT IS PROVEN BY CLEAR  AND  CONVINCING  EVIDENCE  THAT  THE  DEFENDANT'S
 COURSE  OF CONDUCT WAS MOTIVATED BY THE VICTIM'S RACE, GENDER, RELIGION,
 SEXUAL ORIENTATION, NATIONALITY, ETHNICITY OR DISABILITY.
   C. IN ADDITION TO ANY DAMAGES,  CIVIL  PENALTY,  INJUNCTION  OR  OTHER
 APPROPRIATE  RELIEF  AWARDED IN AN ACTION BROUGHT PURSUANT TO THIS ARTI-
 CLE, THE COURT MAY AWARD THE PREVAILING PARTY REASONABLE ATTORNEY'S FEES
 AND COSTS.
   § 3.  Subdivision (a) of rule 3211 of the civil practice law and rules
 is amended by adding a new paragraph 12 to read as follows:
   12. THE PARTY IS IMMUNE FROM LIABILITY PURSUANT TO  SUBDIVISION  E  OF
 SECTION THIRTY-THREE OF THE CIVIL RIGHTS LAW.

 S. 8669                             4
 
   § 4. Subdivision (e) of rule 3211 of the civil practice law and rules,
 as  amended  by  chapter  616 of the laws of 2005, is amended to read as
 follows:
   (e)  Number,  time  and waiver of objections; motion to plead over. At
 any time before service of the responsive pleading is required, a  party
 may move on one or more of the grounds set forth in subdivision (a), and
 no  more  than  one  such  motion  shall  be permitted. Any objection or
 defense based upon a ground set forth in paragraphs  one,  three,  four,
 five  and  six of subdivision (a) is waived unless raised either by such
 motion or in the responsive pleading. A motion based upon a ground spec-
 ified in paragraph two, seven or ten of subdivision (a) may be  made  at
 any  subsequent  time  or  in  a later pleading, if one is permitted; an
 objection that the summons and complaint, summons with notice, or notice
 of petition and petition was not properly served is  waived  if,  having
 raised  such  an  objection  in a pleading, the objecting party does not
 move for judgment on that ground within sixty  days  after  serving  the
 pleading,  unless  the  court  extends the time upon the ground of undue
 hardship. The foregoing sentence shall not apply in any proceeding under
 subdivision one or two of section seven hundred eleven of the real prop-
 erty actions and proceedings law. The papers in opposition to  a  motion
 based  on improper service shall contain a copy of the proof of service,
 whether or not previously filed. An objection based upon a ground speci-
 fied in paragraph eight or nine of subdivision (a) is waived if a  party
 moves on any of the grounds set forth in subdivision (a) without raising
 such objection or if, having made no objection under subdivision (a), he
 or  she  does  not  raise such objection in the responsive pleading.  AN
 OBJECTION BASED UPON THE GROUND SPECIFIED IN PARAGRAPH TWELVE OF  SUBDI-
 VISION  (A)  IS WAIVED IF NOT MADE BEFORE SERVICE OF A RESPONSIVE PLEAD-
 ING.
   § 5.  This act shall take effect on  the  one  hundred  eightieth  day
 after it shall have become a law.

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Senate Bill S8669

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

co-Sponsors

2019-S8669 (ACTIVE) - Details

2019-S8669 (ACTIVE) - Summary

2019-S8669 (ACTIVE) - Sponsor Memo

2019-S8669 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S8669

Share this bill

Sponsored By

Zellnor Myrie

Archive: Last Bill Status - In Senate Committee Rules Committee

co-Sponsors

Jamaal T. Bailey

Alessandra Biaggi

Brad Hoylman-Sigal

Gustavo Rivera

2019-S8669 (ACTIVE) - Details

2019-S8669 (ACTIVE) - Summary

2019-S8669 (ACTIVE) - Sponsor Memo

2019-S8669 (ACTIVE) - Bill Text download pdf

Comments