S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1050
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sen.  MYRIE  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the civil rights law, in relation 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,  privi-
   leges 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. QUALIFIED IMMUNITY NOT A DEFENSE.
         34. PRE-EMPTION.
         35. REMEDIES.
         36. INDEMNIFICATION.
   § 30. LIABILITY FOR RIGHTS VIOLATIONS. A. ANY PERSON  WHO,  UNDER  THE
 COLOR OF LAW, SUBJECTS, OR CAUSES TO BE SUBJECTED, ANY PERSON WITHIN THE
 JURISDICTION  THEREOF  TO  THE DEPRIVATION OF ANY RIGHTS, PRIVILEGES, OR
 IMMUNITIES SECURED BY THE FEDERAL OR  STATE  CONSTITUTION  OR  LAWS,  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  LAW,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02429-01-1
              

 S. 1050                             2
 
 SHALL  BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUI-
 TY, OR OTHER PROPER PROCEEDING FOR REDRESS.
   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 LAW, SUBJECTS, OR CAUSES  TO
 BE  SUBJECTED,  ANY  OTHER  PERSON THE DEPRIVATION OF ANY RIGHTS, PRIVI-
 LEGES, OR IMMUNITIES SECURED BY THE FEDERAL  OR  STATE  CONSTITUTION  OR
 LAWS,  OR  INTERFERES WITH OR ATTEMPTS TO INTERFERE WITH THE EXERCISE OR
 ENJOYMENT OF THOSE RIGHTS,  PRIVILEGES  OR  IMMUNITIES  SECURED  BY  THE
 FEDERAL OR STATE CONSTITUTION OR LAWS, BY THREATS, INTIMIDATION OR COER-
 CION, THE ATTORNEY GENERAL MAY BRING A CIVIL ACTION FOR DAMAGES, INJUNC-
 TIVE  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.  QUALIFIED IMMUNITY NOT A DEFENSE. IT SHALL NOT BE A DEFENSE OR
 IMMUNITY TO ANY ACTION BROUGHT UNDER THIS ARTICLE THAT THE DEFENDANT WAS
 ACTING IN GOOD FAITH, OR THAT  THE  DEFENDANT  BELIEVED,  REASONABLY  OR
 OTHERWISE, THAT THEIR CONDUCT WAS LAWFUL AT THE TIME WHEN IT WAS COMMIT-
 TED.  NOR SHALL IT BE A DEFENSE OR IMMUNITY THAT THE RIGHTS, PRIVILEGES,
 OR IMMUNITIES SECURED BY THE FEDERAL OR STATE CONSTITUTION OR LAWS  WERE
 NOT CLEARLY ESTABLISHED AT THE TIME OF THEIR DEPRIVATION OR INTERFERENCE
 OR ATTEMPTED INTERFERENCE BY THE DEFENDANT, OR THAT THE STATE OF THE LAW
 WAS  OTHERWISE  SUCH  THAT  THE DEFENDANT COULD NOT REASONABLY HAVE BEEN
 EXPECTED TO KNOW WHETHER THEIR CONDUCT WAS LAWFUL.
   § 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.
   §  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  SHALL AWARD THE PREVAILING PLAINTIFF REASONABLE ATTOR-
 NEY'S FEES AND COSTS.   FOR THE  PURPOSES  OF  THIS  SECTION,  THE  TERM
 "PREVAILING  PLAINTIFF" INCLUDES A PLAINTIFF WHOSE COMMENCEMENT OF LITI-

 S. 1050                             3
 
 GATION HAS ACTED AS A CATALYST  TO  EFFECT  CHANGE  IN  THE  DEFENDANT'S
 CONDUCT,  REGARDLESS  OF  WHETHER  THAT CHANGE HAS BEEN IMPLEMENTED AS A
 RESULT OF A JUDGMENT IN SUCH PLAINTIFF'S FAVOR.
   §  36. INDEMNIFICATION. A. NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
 A PUBLIC ENTITY SHALL INDEMNIFY ITS PUBLIC EMPLOYEE  FOR  ANY  LIABILITY
 INCURRED  BY  THE  EMPLOYEE  AND  FOR  ANY  JUDGMENT ENTERED AGAINST THE
 EMPLOYEE FOR CLAIMS ARISING UNDER THIS SECTION OR UPON THE SETTLEMENT OF
 SUCH CLAIMS, PROVIDED THAT THE JUDGMENT OR  SETTLEMENT  AMOUNT  BE  PAID
 FROM  THE BUDGET OF THE AGENCY OR DEPARTMENT EMPLOYING SUCH EMPLOYEE AND
 THAT SUCH JUDGMENT OR SETTLEMENT AMOUNT  SHALL  NOT  BE  PAID  FROM  THE
 GENERAL FUND OF SUCH PUBLIC ENTITY.
   B.  A  PUBLIC  ENTITY  SHALL  NOT  INDEMNIFY  A PUBLIC EMPLOYEE IF THE
 EMPLOYEE WAS CONVICTED OF A CRIMINAL  VIOLATION  FOR  THE  CONDUCT  FROM
 WHICH THE CLAIM ARISES.
   C.  FOR  THE  PURPOSE  OF THIS SECTION, "PUBLIC ENTITY" SHALL MEAN THE
 STATE, ANY COUNTY, CITY AND COUNTY, MUNICIPALITY, AND EVERY OTHER  POLI-
 TICAL  SUBDIVISION  OF THE STATE; AND ANY PRIVATE ENTITY THAT ENGAGES IN
 STATE ACTION.
   § 3.  This act shall take effect on  the  one  hundred  eightieth  day
 after it shall have become a law.