HOUSE BILL 431

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

INTRODUCED BY

Antonio "Moe" Maestas

FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO LAW ENFORCEMENT; PROHIBITING A LAW ENFORCEMENT AGENCY FROM COLLECTING INFORMATION ON THE POLITICAL, RELIGIOUS OR SOCIAL ASSOCIATIONS OR ACTIVITIES OF A PERSON THAT DOES NOT DIRECTLY RELATE TO INVESTIGATION OF CRIMINAL CONDUCT; REQUIRING A WRITTEN POLICY; PROVIDING FOR OVERSIGHT BY THE ATTORNEY GENERAL; PROVIDING FOR CIVIL LIABILITY.

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

     Section 1. A new section of Chapter 29 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] COLLECTION OF INFORMATION PROHIBITED--EXCEPTIONS--OVERSIGHT--CIVIL LIABILITY.--

          A. A law enforcement agency shall not collect, maintain or share with any other law enforcement agency, information about the political, religious or social associations, views or activities of a person unless:

                (1) the information directly relates to an investigation of criminal conduct; and

                (2) there are reasonable grounds to believe that the subject of the information is involved in the criminal conduct.

          B. Information about a person's political, religious or social associations, views or activities that is collected or maintained by a law enforcement agency shall be destroyed if:

                (1) a criminal charge, to which the information is material or directly related, is not brought against the person within a reasonable period of time;

                (2) a criminal charge, to which the information is material or directly related, was brought and has resulted in a dismissal, nolle prosequi or acquittal; or

                (3) the information was collected or maintained in violation of Subsection A of this section.

          C. A law enforcement agency shall establish and enforce a written policy governing the collection, maintenance and destruction of information in accordance with the provisions of this section.

          D. A law enforcement agency shall provide an annual report to the attorney general describing:

                (1) all information collected, maintained or shared by the agency on the political, religious or social associations, views or activities of a person;

                (2) the reasons for collecting or maintaining the information;

                (3) the alleged criminal conduct to which the information relates; and

                (4) the grounds for believing that the subject of the information is involved in the criminal conduct.

          E. The attorney general shall have access to the files and records of a law enforcement agency to oversee and monitor compliance with this section. The attorney general may investigate citizen complaints regarding the collection, maintenance or sharing of information by a law enforcement agency in violation of this section.

          F. A person may bring a civil action against a law enforcement agency that has collected, maintained or shared information about the person in violation of this section for:                 (1) actual damages sustained by the person as a result of the violation;

                 (2) a civil penalty in an amount not to exceed ten thousand dollars ($10,000);

                (3) punitive damages if an agency engages in a pattern of willful violation or reckless disregard of this section; and

                (4) costs of the action and reasonable attorney fees.

          G. The provisions of this section apply to a law enforcement agency and its elected officials, officers and employees regardless of whether an investigation or prosecution is conducted in coordination with other agencies or jurisdictions or whether the officers or employees are cross-deputized to assist other jurisdictions.

           H. As used in this section:

                (1) "law enforcement agency" means a law enforcement agency of the state or of a political subdivision of the state that is responsible for the prevention, detection and investigation of crime, the prosecution of crime or the enforcement of penal, traffic or transportation laws of the state and includes district attorneys and state and local prosecutors. For the purposes of sharing information, "law enforcement agency" includes a law enforcement agency of the federal government or of any other state or political subdivision of a state;

                (2) "person" means an individual, group, association, organization, corporation, business or partnership; and

                (3) "reasonable grounds" means specific and articulable facts that would lead a reasonable person to believe something."

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