HOUSE BILL 428

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Nathan P. Cote

AN ACT

RELATING TO LAW ENFORCEMENT; PROHIBITING BIAS-BASED PROFILING; REQUIRING POLICIES AND PROCEDURES TO ELIMINATE PROFILING; PROVIDING FOR THE ATTORNEY GENERAL TO RESPOND.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. SHORT TITLE.--This act may be cited as the "Prohibition of Profiling Practices Act".

     Section 2. DEFINITIONS.--As used in the Prohibition of Profiling Practices Act, "profiling" means the practice of relying, to any degree, on race, ethnicity, color, national origin, nationality, language, sex, gender identity, sexual orientation, political affiliation, religion, socioeconomic status or disability in:

          A. selecting a person to subject to routine or spontaneous investigatory activities, including interviews, detentions, traffic stops, pedestrian stops, frisks and other types of bodily searches or searches of personal or real property; or

          B. determining the scope, substance or duration of investigation or law enforcement activity to which a person will be subjected.

     Section 3. PROFILING PRACTICES PROHIBITED.--

          A. A law enforcement officer or law enforcement agency shall not engage in profiling.

          B. Except where reasonable and articulable suspicion exists, a law enforcement officer shall not:

                (1) keep a person detained beyond the time necessary to issue a citation, enforce a court order or address a violation of criminal law;

                (2) ask questions of a person detained beyond the scope necessary to issue a citation, enforce a court order or address a violation of criminal law; or

                (3) seek the consent of a person to conduct a search of the person or the person's personal or real property.

           C. Nothing in Subsection A or B of this section shall be interpreted to prohibit a law enforcement officer or law enforcement agency from relying on physical descriptions, including sex, race, ethnicity and color, to select a person to subject to investigatory activity or determine the scope, substance or duration of investigation when:

                (1) seeking to apprehend a specific suspect; and

                (2) there exists trustworthy and reliable information, relevant to the locality and time frame, that links that person to an identified criminal incident or scheme.

          D. Evidence obtained in violation of Subsection A or B of this section shall be excluded from judicial proceedings.

          E. Nothing in this section shall be interpreted to expand the jurisdiction or authority of a law enforcement officer or law enforcement agency.

     Section 4. POLICIES AND PROCEDURES.--A law enforcement agency shall:

          A. eliminate all practices that allow profiling by its law enforcement officers;

          B. maintain written policies and procedures designed to eliminate profiling by its law enforcement officers; and

           C. maintain an administrative complaint procedure that, at a minimum, requires the law enforcement agency to:

                (1) investigate complaints of profiling by its law enforcement officers and, when warranted, take appropriate measures to discipline a law enforcement officer for engaging in profiling or facilitate mediation or other restorative justice measures;

                (2) provide appropriate forms for submitting complaints of profiling by its law enforcement officers;

                (3) publish the policies and procedures designed to eliminate profiling and the forms for submitting complaints of profiling on the law enforcement agency's web site, if any;

                (4) allow complaints alleging profiling by its law enforcement officers to be made:

                     (a) in writing or orally;

                     (b) in person or by mail, telephone, facsimile or electronic mail;

                     (c) anonymously or through a third party; and

                     (d) within three hundred days after the alleged profiling was committed; and

                (5) submit a copy of a complaint and a summary of remedial action taken to the attorney general.

     Section 5. INDEPENDENT OVERSIGHT.--The attorney general shall establish independent procedures for receiving, investigating and responding to complaints alleging profiling by a law enforcement officer or agency. The attorney general may publish a report or finding regarding complaints received alleging profiling as the attorney general deems appropriate.

     Section 6. RIGHT OF ACTION.--A violation of the provisions of Section 3 of the Prohibition of Profiling Practices Act shall create a cause of action in a court of competent jurisdiction. A prevailing plaintiff may be awarded reasonable attorney fees and costs.

     Section 7. EFFECTIVE DATE.--The effective date of the provisions of Sections 4 and 5 of this act is December 31, 2009.

- 5 -