NY State Senate Bill 2017-S8925

Senate Bill S8925

2017-2018 Legislative Session

Exempts certain interested parties or people from civil arrest while going to, remaining at, or returning from the place of such court proceeding

download bill text pdf

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
Jun 05, 2018	referred to rules

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2017-S8925 (ACTIVE) - Details

See Assembly Version of this Bill:: A11013
Current Committee:: Senate Rules
Law Section:: Civil Rights Law
Laws Affected:: Add §28, Civ Rts L; add §4-a, amd §212, Judy L
Versions Introduced in 2019-2020 Legislative Session:: S425, A2176

2017-S8925 (ACTIVE) - Summary

Exempts certain interested parties or people from civil arrest while going to, remaining at, or returning from the place of such court proceeding.

2017-S8925 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8925

SPONSOR: ALCANTARA
 
TITLE OF BILL:

An act to amend the civil rights law and the judiciary law, in relation
to protecting certain interested parties or people from civil arrest
while going to, remaining at, or returning from the place of such court
proceeding

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to facilitate continued access to the
justice system and courts by all members of the community without fear
of immigration-related consequences.

 
SUMMARY OF PROVISIONS:

Section one is the title of the bill.

Section two would amend the Civil Rights Law to protect certain persons

from civil arrest when going to, remaining at, or returning from a court
appearance or proceeding unless a specific judicial warrant or judicial
order authorizing such arrest has been issued.  This section provides
that a civil court action may be brought by the individual or the attor-
ney general to address an alleged violation of this provision. This
provision is in addition to the general protections from civil arrest
found in Article Three of the Civil Rights Law, in any other law, and
available under common law.

Section three would amend the Judiciary Law to allow courts to issue
orders designed to protect the prohibition on such civil arrests.

Section four would amend the Judiciary Law to provide that non-local law
enforcement officials seeking to enter a courthouse with respect to an
alleged violation or violations of federal immigration law would be
required to identify themselves and such purpose. Counsel for the
unified court system would be required to review any judicial warrant or
judicial order presented to assure its authenticity before allowing
entry of the officer intending to effect such an immigration-related
arrest.

Section five contains a severability clause. Section six is the effec-
tive date.

 
JUSTIFICATION:

Article Three of the Civil Rights Law, "Privilege From Arrest," dates
back to the early part of the last century. Most of these provisions of
the Civil Rights Law were enacted in 1909 (e.g., § 22 ("Privileges of
officers and prisoners from arrest while passing through another coun-
ty"); § 23 ("No person to be arrested in civil proceedings without asta-
tutory provision); § 25 ("Witness exempt from arrest")).  While such
provisions have been effective to protect the integrity and needs of the
court system in certain circumstances, certain modern practices make an
updated, supplementary statute necessary.  Changes by federal agencies
regarding the enforcement of federal immigration law have instilled
significant fear in immigrant communities across New York State. In
particular, the use of court calendars and courthouses as a means of
locating allegedly undocumented individuals has soared, leaving many
immigrants, documented and undocumented, afraid to access the justice
system or respond to court summonses for fear of potentially life-chang-
ing immigration-related repercussions. This trend has a potentially
damaging impact on all New Yorkers, not just immigrant communities, as
the operation of our judicial system and public safety are undermined.

Domestic violence victims - whether documented individuals or not - need
access to our civil justice system, for orders of protection and similar
relief. An entire family may be gravely impacted if a tenant is afraid
to enter the courthouse and respond to a landlord's court petition.
Justice to other persons is denied when an immigrant - documented or not
- refuses to come to court to testify as a victim or witness. It serves
neither justice nor public safety when fear of a civil arrest deters a
defendant charged with a traffic infraction, or a more serious crime,
from attending a scheduled court appearance in the case.

According to the Immigrant Defense Project, from 2016 to 2017, arrests
by federal Immigration and Customs Enforcement ("ICE") agents at court-
houses in New York State increased by 1200%. Fear of being targeted,
either due to a lack of legal immigration status or concern about the
uncertain status of a family member, have dissuaded many individuals
from contacting law enforcement or following through with court
proceedings. District attorneys and legal representatives, in New York
and elsewhere, have expressed frustration and concern regarding their
ability to prosecute cases, as victims and witnesses are sometimes too
afraid to attend the proceedings. This inability of law enforcement and
the legal community to work effectively with immigrant communities and
individuals has potentially severe consequences for public safety, as
the justice system is handicapped by the unwillingness of victims,
witnesses, tenants and others to come forward and enter the courthouse.

As fewer individuals feel safe interacting with the justice system,
fearing potential implications for themselves, friends or family, it
becomes all the more challenging to promote public safety. It is imper-
ative that we ensure that all members of our community feel safe access-
ing New York's court system.

This bill would make a modest change to clarify and update New York's
century-old prohibition on certain courthouse arrests (Civil Rights Law
Art. 3). The bill would allow arrest for an immigration offense based on
a judicial arrest warrant or judicial order, signed by a judge of anoth-
er jurisdiction who is authorized to order such arrest.  However, an
immigration - related courthouse arrest based on an administrative
warrant, or without a warrant, would not be permitted.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None expected.

 
EFFECTIVE DATE:
This bill would take effect immediately.

2017-S8925 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8925
 
                             I N  S E N A T E
 
                               June 5, 2018
                                ___________
 
 Introduced by Sen. ALCANTARA -- 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 judiciary law, in relation
   to protecting certain interested parties or people from  civil  arrest
   while  going  to,  remaining  at,  or returning from the place of such
   court proceeding

   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 "protect
 our courts act".
   § 2. The civil rights law is amended by adding a  new  section  28  to
 read as follows:
   §  28.  CIVIL  ARREST; CERTAIN LOCATIONS. 1. A PERSON DULY AND IN GOOD
 FAITH ATTENDING A COURT PROCEEDING IN WHICH SUCH PERSON IS  A  PARTY  OR
 POTENTIAL  WITNESS, OR A FAMILY OR HOUSEHOLD MEMBER IS A PARTY OR POTEN-
 TIAL WITNESS, IS PRIVILEGED FROM CIVIL ARREST WHILE GOING TO,  REMAINING
 AT,  AND RETURNING FROM, THE PLACE OF SUCH COURT PROCEEDING, UNLESS SUCH
 CIVIL ARREST IS SUPPORTED  BY  A  JUDICIAL  WARRANT  OR  JUDICIAL  ORDER
 AUTHORIZING SUCH CIVIL ARREST.
   2. IT IS A CONTEMPT OF THE COURT AND FALSE IMPRISONMENT FOR ANY PERSON
 TO WILLFULLY VIOLATE SUBDIVISION ONE OF THIS SECTION, OR AN ORDER OF THE
 COURT ISSUED PURSUANT TO SECTION FOUR-A OF THE JUDICIARY LAW, BY EXECUT-
 ING  AN  ARREST PROHIBITED BY SUBDIVISION ONE OF THIS SECTION OR SECTION
 FOUR-A OF THE JUDICIARY LAW, OR WILLFULLY ASSISTING OR WILLFULLY FACILI-
 TATING AN ARREST PROHIBITED  BY  SUBDIVISION  ONE  OF  THIS  SECTION  OR
 SECTION  FOUR-A OF THE JUDICIARY LAW; PROVIDED, HOWEVER, THAT NOTHING IN
 THIS SUBDIVISION SHALL AFFECT ANY RIGHT OR DEFENSE OF ANY PERSON, POLICE
 OFFICER, PEACE OFFICER OR PUBLIC OFFICER PURSUANT TO ARTICLE THIRTY-FIVE
 OF THE PENAL LAW.
   3. REGARDLESS OF WHETHER A PROCEEDING FOR CONTEMPT OF THE COURT PURSU-
 ANT TO SUBDIVISION TWO OF THIS SECTION HAS BEEN INITIATED:
   (A) A PERSON DESCRIBED IN SUBDIVISION ONE OF THIS SECTION MAY BRING  A
 CIVIL  ACTION  FOR  APPROPRIATE EQUITABLE AND DECLARATORY RELIEF IF SUCH
 PERSON HAS REASONABLE CAUSE TO BELIEVE A VIOLATION OF SUBDIVISION ONE OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD15571-06-8

 S. 8925                             2
 
 THIS SECTION, AS DESCRIBED IN SUBDIVISION TWO  OF  THIS  SECTION,  OR  A
 VIOLATION  OF  SECTION  FOUR-A OF THE JUDICIARY LAW, HAS OCCURRED OR MAY
 OCCUR; AND
   (B)  THE  ATTORNEY GENERAL MAY BRING A CIVIL ACTION IN THE NAME OF THE
 PEOPLE OF THE STATE OF NEW YORK  TO  OBTAIN  APPROPRIATE  EQUITABLE  AND
 DECLARATORY  RELIEF  IF  THE  ATTORNEY  GENERAL  HAS REASONABLE CAUSE TO
 BELIEVE THAT  A  VIOLATION  OF  SUBDIVISION  ONE  OF  THIS  SECTION,  AS
 DESCRIBED  IN SUBDIVISION TWO OF THIS SECTION, OR A VIOLATION OF SECTION
 FOUR-A OF THE JUDICIARY LAW, HAS OCCURRED OR MAY OCCUR.
   4. IN ANY SUCCESSFUL ACTION PURSUANT  TO  SUBDIVISION  THREE  OF  THIS
 SECTION,  A  PLAINTIFF  OR  PETITIONER  MAY RECOVER COSTS AND REASONABLE
 ATTORNEY'S FEES.
   5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO NARROW, OR IN ANY WAY
 LESSEN, ANY COMMON LAW OR OTHER RIGHT OR PRIVILEGE OF  A  PERSON  PRIVI-
 LEGED FROM ARREST PURSUANT TO THIS ARTICLE OR OTHERWISE.
   6. AS USED IN THIS SECTION:
   (A) "CIVIL ARREST" SHALL MEAN AN ARREST THAT IS NOT:
   (I) FOR THE SOLE OR PRIMARY PURPOSE OF PREPARING THE PERSON SUBJECT TO
 SUCH  ARREST  FOR  CRIMINAL PROSECUTION, FOR AN ALLEGED VIOLATION OF THE
 CRIMINAL LAW OF:
   (A) THIS STATE, OR ANOTHER STATE, FOR WHICH A SENTENCE OF  A  TERM  OF
 IMPRISONMENT IS AUTHORIZED BY LAW; OR
   (B)  THE UNITED STATES, FOR WHICH A SENTENCE OF A TERM OF IMPRISONMENT
 IS AUTHORIZED BY LAW, AND FOR WHICH  FEDERAL  LAW  REQUIRES  AN  INITIAL
 APPEARANCE  BEFORE A FEDERAL JUDGE, FEDERAL MAGISTRATE OR OTHER JUDICIAL
 OFFICER, PURSUANT TO THE FEDERAL RULES OF CRIMINAL PROCEDURE THAT GOVERN
 INITIAL APPEARANCES; OR
   (II) FOR CONTEMPT OF THE COURT IN WHICH THE COURT PROCEEDING IS TAKING
 PLACE OR WILL BE TAKING PLACE;
   (B) "COURT PROCEEDING" SHALL MEAN ANY APPEARANCE IN A  COURT  OF  THIS
 STATE  BEFORE  A  JUDGE  OR JUSTICE OR JUDICIAL MAGISTRATE OF THIS STATE
 ORDERED OR SCHEDULED BY SUCH JUDGE OR JUSTICE OR JUDICIAL MAGISTRATE, OR
 THE FILING OF PAPERS DESIGNED TO INITIATE SUCH AN  APPEARANCE  BEFORE  A
 JUDGE OR JUSTICE OR JUDICIAL MAGISTRATE OF THIS STATE;
   (C)  "FAMILY  OR  HOUSEHOLD  MEMBER" SHALL HAVE THE SAME MEANING AS IN
 SUBDIVISION TWO OF SECTION  FOUR  HUNDRED  FIFTY-NINE-A  OF  THE  SOCIAL
 SERVICES LAW; AND
   (D) "JUDICIAL WARRANT OR JUDICIAL ORDER AUTHORIZING SUCH CIVIL ARREST"
 MEANS  AN ARREST WARRANT OR OTHER JUDICIAL ORDER, ISSUED BY A MAGISTRATE
 SITTING IN THE JUDICIAL BRANCH OF A LOCAL OR STATE GOVERNMENT OR OF  THE
 FEDERAL  GOVERNMENT,  AUTHORIZING A CIVIL ARREST AND ISSUED BY THE COURT
 IN WHICH PROCEEDINGS FOLLOWING SUCH ARREST WILL BE HEARD AND DETERMINED.
   § 3. The judiciary law is amended by adding a new section 4-a to  read
 as follows:
   §  4-A. CERTAIN POWERS OF THE COURTS REGARDING CIVIL ARRESTS. IN ORDER
 TO MAINTAIN ACCESS TO THE COURT AND OPEN JUDICIAL  PROCEEDINGS  FOR  ALL
 PERSONS  IN  THEIR  INDIVIDUAL CAPACITY AND TO PREVENT INTERFERENCE WITH
 THE NEEDS OF JUDICIAL ADMINISTRATION, A COURT HAS  THE  POWER  TO  ISSUE
 APPROPRIATE  JUDICIAL ORDERS TO PROTECT THE PRIVILEGE FROM CIVIL ARREST,
 IN ACCORDANCE WITH ARTICLE THREE OF THE CIVIL RIGHTS LAW.
   § 4. Subdivision 2 of section 212 of the judiciary law is  amended  by
 adding a new paragraph (w) to read as follows:
   (W)  (I)  IN  ORDER  TO MAINTAIN ACCESS TO THE COURT AND OPEN JUDICIAL
 PROCEEDINGS FOR ALL PERSONS IN THEIR INDIVIDUAL CAPACITY AND TO  PREVENT
 INTERFERENCE  WITH THE NEEDS OF JUDICIAL ADMINISTRATION, CONSISTENT WITH
 SECTION TWENTY-EIGHT OF THE CIVIL RIGHTS LAW AND SECTION FOUR-A OF  THIS

 S. 8925                             3
 
 CHAPTER, DIRECT THAT COURT PERSONNEL RESPONSIBLE FOR ALL COURTHOUSES AND
 THE  PLACES OF ALL COURT PROCEEDINGS IN THE STATE SHALL NOT ALLOW ACCESS
 TO SUCH COURTHOUSES AND PLACES OF COURT  PROCEEDINGS  TO  NON-LOCAL  LAW
 ENFORCEMENT  PERSONNEL  SEEKING  TO ENTER SUCH LOCATIONS WITH RESPECT TO
 VIOLATION OR VIOLATIONS OF FEDERAL IMMIGRATION LAW UNLESS PRESENTED WITH
 A VALID JUDICIAL WARRANT OR JUDICIAL ORDER, AND  DESIGNATED  COUNSEL  OF
 THE  UNIFIED  COURT  SYSTEM  HAS  INDIVIDUALLY REVIEWED AND CONFIRMED IN
 WRITING THE AUTHENTICITY OF SUCH JUDICIAL  WARRANT  OR  JUDICIAL  ORDER.
 NON-LOCAL  LAW  ENFORCEMENT  PERSONNEL  SEEKING TO ENTER SUCH A LOCATION
 WITH RESPECT TO VIOLATION OR VIOLATIONS OF FEDERAL IMMIGRATION LAW SHALL
 IDENTIFY THEMSELVES AND SUCH PURPOSE, AND PRESENT SUCH JUDICIAL  WARRANT
 OR  JUDICIAL ORDER TO SUCH RESPONSIBLE COURT PERSONNEL WHEN SEEKING SUCH
 ACCESS. THE CHIEF ADMINISTRATOR SHALL PROMULGATE RULES  CONSISTENT  WITH
 THIS SUBDIVISION DESIGNED TO IMPLEMENT THE PROVISIONS OF THIS PARAGRAPH.
   (II)  SUCH  RULES  SHALL  ALSO  REQUIRE  THAT  A COPY OF EACH JUDICIAL
 WARRANT AND   JUDICIAL ORDER  REVIEWED  BY  DESIGNATED  COUNSEL  OF  THE
 UNIFIED COURT SYSTEM UNDER THIS PARAGRAPH BE SENT TO AND MAINTAINED IN A
 CENTRAL  REPOSITORY  BY  THE CHIEF ADMINISTRATOR, WHO SHALL ON AN ANNUAL
 BASIS COMPILE STATISTICS DISAGGREGATED BY  COUNTY AND PREPARE  A  REPORT
 OF  SUCH  STATISTICS,  AND  ALSO  IDENTIFY IN SUCH REPORT, FOR EACH SUCH
 JUDICIAL WARRANT AND JUDICIAL ORDER, THE DATE SUCH JUDICIAL  WARRANT  OR
 JUDICIAL  ORDER  WAS SIGNED, THE JUDGE AND COURT WHICH ISSUED SUCH JUDI-
 CIAL WARRANT OR JUDICIAL ORDER AND THE LOCATION OF SUCH COURT  AS  SHOWN
 BY  SUCH DOCUMENT, THE  DATE SUCH JUDICIAL WARRANT OR JUDICIAL ORDER WAS
 PRESENTED TO COUNSEL FOR THE  UNIFIED COURT SYSTEM, A DESCRIPTION OF THE
 TYPE OF JUDICIAL WARRANT OR JUDICIAL ORDER AND, TO THE EXTENT  KNOWN  TO
 COURT  PERSONNEL,  WHETHER  OR  NOT AN ARREST OCCURRED  AND THE DATE AND
 LOCATION OF SUCH ARREST. SUCH REPORT, WHICH SHALL NOT INCLUDE THE  NAMES
 OF INDIVIDUALS INVOLVED, SHALL  BE  PUBLISHED  ON  THE  WEBSITE  OF  THE
 UNIFIED  COURT  SYSTEM  AND  COPIES  OF SUCH REPORT SHALL BE SENT TO THE
 GOVERNOR, THE SPEAKER OF THE ASSEMBLY AND THE TEMPORARY PRESIDENT OF THE
 SENATE.
   (III) FOR PURPOSES  OF  THIS  PARAGRAPH,  "NON-LOCAL  LAW  ENFORCEMENT
 PERSONNEL"  SHALL MEAN A PERSON OR PERSONS EMPLOYED OR RETAINED BY A LAW
 ENFORCEMENT AGENCY: (A) OF A JURISDICTION OTHER THAN THE  STATE  OF  NEW
 YORK OR A LOCAL GOVERNMENT IN THE STATE OF NEW YORK; OR (B) OF THE STATE
 OF  NEW  YORK OR A LOCAL GOVERNMENT IN THE STATE OF NEW YORK, WHERE SUCH
 LAW ENFORCEMENT AGENCY OR EMPLOYEE OR AGENT THEREOF HAS ENTERED INTO  AN
 AGREEMENT  WITH  A  FEDERAL  LAW  ENFORCEMENT  AGENCY, INCLUDING BUT NOT
 LIMITED TO PURSUANT TO 8 U.S.C. 1373, AUTHORIZING IT OR SUCH  PERSON  TO
 ENFORCE OR ASSIST IN THE ENFORCEMENT OF FEDERAL IMMIGRATION LAW.
   § 5. Severability clause. If any clause, sentence, paragraph, subdivi-
 sion,  section  or  part  of  this act shall be adjudged by any court of
 competent jurisdiction to be invalid, such judgment  shall  not  affect,
 impair,  or  invalidate  the remainder thereof, but shall be confined in
 its operation to the clause, sentence, paragraph,  subdivision,  section
 or part thereof directly involved in the controversy in which such judg-
 ment shall have been rendered. It is hereby declared to be the intent of
 the  legislature  that  this  act  would  have been enacted even if such
 invalid provisions had not been included herein.
   § 6. This act shall take effect immediately.

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