S T A T E O F N E W Y O R K
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8669
I N S E N A T E
July 2, 2020
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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.