Authorizes law enforcement to use ethnic profiling when determining which individuals to stop, question, frisk, or search for suspicion of terrorist activity

Section Two of this bill would amend the Executive law to add a new section 837-s, to allow a peace officer or police officer to consider the apparent national origin of a suspect as one of the many factors in a potential terrorist suspect profile which he or she could use to identify persons who could be stopped, questioned, frisked and/or searched in furtherance of the government's compelling interest in deterring terrorist attacks.

For purposes of this section, "potential terrorist suspect profile" would mean multiple factors which determine the existence of a reasonable individualized suspicion and/or probable cause and provide cause for a peace officer or police officer to lawfully justify the stopping of a motor vehicle, the stopping and questioning of an individual, and/or the stopping and frisking of an individual. In furtherance of the government's compelling interest in deterring terrorist attacks. For purposes of this section "national origin" would include "ancestry".

One of these factors may be the national origin of the individual, particularly a good faith suspicion that the individual to be stopped, questioned, frisked or searched has ties to any country which has had a history of maintaining a terrorist organization, including, but not limited to, Afghanistan, Pakistan, Iran, Syria, Yemen, Lebanon, Iraq, Egypt, Saudi Arabia, Libya, Nigeria, Somalia, Algeria, Russia, Peru, Philippines, Mali, Indonesia. or Malaysia

Section Three of this bill would amend the Penal law, to add a new section 490.02 to provide for liability protection for those who must use the terrorist suspect profiling performed pursuant to the above standards.

Justification

The Supreme Court of the United States held in Grutter v. Bollinger, 539 U.S. 308 (2003), that factors such as race and ethnicity, consistent with the Equal Protection clause of the U.S. Constitution, can be considered in making governmental decisions provided that:

(1) Such consideration serves a "compelling governmental interest" and

(2) That race or ethnicity is not the only factor to be considered in making the decisions.

Preventing terrorist attacks on our citizens - including not only possible deaths and injuries, but also the resulting economic harm and devastation - is the very definition of a compelling governmental interest. Accordingly, this compelling governmental interest demands - since both law enforcement resources and the time necessary to make an initial decision regarding stopping and questioning are very limited - the identification of potential terrorist suspect as effectively and efficiently as possible so that they may be stopped, questioned, frisked, or searched. This is particularly the case when the suspect has ties to countries which maintain or support terrorist organizations.

The recent events of Northwest Flight 253, where a terrorist sought to blow up an airline bound for Detroit, on Christmas Day 2009, only highlights the need for this type of legislation. For although that incident, due to the brave actions of fellow passengers, ended without horrific tragedy, it clearly demonstrated that our law enforcement officials must be provided with the ability to detain and prevent terrorist suspects from carrying out their murderous plans

By its very text, this bill does not seek authorize the practice of racial or ethnic discrimination. Rather it seeks to have law enforcement to be permitted to operate in the real world, where terrorists do in fact frequently come from certain nationalities and backgrounds, which support and maintain terrorist organizations. Through this bill, our law enforcement officials will no longer have their hands inappropriately tied in their mission to protect us, due to a misplaced policy of political correctness,

As a result, this bill seeks, in the interest of ensuring the most effective terrorist prevention which meets U.S. constitutional protections, to enact a law which authorizes the effective use of potential suspect terrorist profiles.

Legislative history

This is a new bill in the Senate

Fiscal implications

None noted.

Effective date

This act would take effect immediately and would sunset and be deemed repealed five years after it shall have become a law.