AB937: Bill Text

LRB-3345/1

PJH:wlj

2015 - 2016 LEGISLATURE

2015 Assembly BILL 937

February 18, 2016 - Introduced by Representative Young, cosponsored by Senator L. Taylor. Referred to Committee on Criminal Justice and Public Safety.

AB937,1,4 An Act to amend 66.0511 (title), 165.85 (4) (a) 1. and 814.04 (intro.); and to create 15.257 (3), 66.0511 (2m), 165.10, 165.842, 165.847, 893.995 and 895.44 of the statutes; relating to: racial profiling and other discriminatory policing practices and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill addresses racial profiling and other discriminatory policing practices as a violation of an individual's rights and allows for the Department of Justice (DOJ) and an individual to pursue a civil action if an individual's civil rights are violated.

Constitutional rights and civil actions

Article I of the Wisconsin Constitution guarantees certain rights, including the right to life, liberty, and the pursuit of happiness; to freedom of speech, assembly, and religion; to petition the government; to a trial by jury; to a remedy for all wrongs; to be treated with fairness, dignity, and respect if a crime victim; to be secure from unreasonable searches and seizures; to keep and bear arms; and to fish, hunt, trap, and take game. Article I also guarantees a criminal defendant the rights to counsel, to confront his or her accusers, to a speedy and public trial, to due process of law, to reasonable bail, and to habeas corpus and prohibits double jeopardy, self-incrimination, and cruel and unusual punishment. In addition, Article I prohibits ex post facto laws, laws impairing the obligation of contract, and the taking of property for public use without just compensation (Article I rights).

This bill permits a person to bring a civil action in circuit court for violation of his or her Article I rights against any person that caused the injury, including the state or any political subdivision of the state, within six years after the alleged Article I rights violation. Under the bill, the circuit court may issue an injunction or restraining order and may order any other relief the court considers appropriate, including compensatory and punitive damages and reasonable costs, expert witness fees, and attorney fees. This civil action remedy is in addition to any other remedy under current law.

The bill also creates a council within DOJ that is charged with investigating claims of racial profiling and other discriminatory policing practices. Under the bill, racial profiling and other discriminatory practices include any action taken by a law enforcement officer, against or toward an individual that relies, to any degree, on the individual's actual or perceived race, color, ethnicity, religion, gender identity or expression, sexual orientation, immigration or citizenship status, language spoken, disability or illness, housing status, occupation or employment status, or socioeconomic status. However, it is not racial profiling or a discriminatory policing practice for a law enforcement officer to rely on any of those factors if the factor links the individual to a specific, reliable description of an individual suspected of committing a crime.

Under the bill, if the council finds probable cause that an act of racial profiling or other discriminatory policing practice occurred, it may refer the matter to the law enforcement agency that employs the offending officer for disciplinary action against the officer and may refer the matter to DOJ for civil action as a violation of the individual's Article I rights. The bill authorizes DOJ to bring an action in court to obtain equitable or injunctive relief in order to protect the civil rights of individuals.

data collection

Under current law, a law enforcement agency must collect information concerning each person whom the law enforcement agency arrests or takes into custody if the person has committed certain offenses or is a fugitive from justice. The information that the law enforcement agency must collect includes the person's fingerprints, photographs of the person's face and profile, and other available identifying data. The information collected must be forwarded to DOJ, which maintains the information for various law enforcement and reporting purposes.

The bill requires a law enforcement agency to collect the following information concerning motor vehicle stops made on or after January 1, 2017: 1) the name, address, gender, and race of the operator of the motor vehicle, with the officer subjectively determining the person's race as being Caucasian, African American, Hispanic, American Indian or Alaska Native, or Asian or Pacific Islander; 2) the reason for the motor vehicle stop; 3) the make and year of the motor vehicle; 4) the date, time, and location of the motor vehicle stop; 5) whether or not a law enforcement officer conducted a search of the motor vehicle, the operator, or any passenger and, if so, whether the search was with consent or by other means; 6) the name, address, gender, and race of any person searched; and 7) the name and badge number of the officer making the motor vehicle stop.

The information that is collected under the bill concerning motor vehicle stops is not subject to inspection or copying as a public record. The information, however, must be forwarded to DOJ, which must then compile and analyze it, along with any other relevant information, to determine, both for the state as a whole and for each law enforcement agency, whether the number of stops and searches involving motor vehicles operated or occupied by members of a racial minority are disproportionate compared to the number of stops and searches involving motor vehicles operated or occupied solely by persons who are not members of a racial minority.

The determination of whether the number of stops and searches involving racial minorities is disproportionate must be based on an estimate of the population and characteristics of all persons traveling on state highways, on an estimate of the populations and characteristics of persons traveling on state highways who are violating a law or ordinance, or on some other relevant population estimate.

If DOJ finds that the number of stops and searches involving racial minorities is disproportionate compared to the number of stops and searches involving nonminorities, DOJ must then determine whether that disproportion is the result of racial profiling, racial stereotyping, or other race-based discrimination or selective enforcement. Under the bill, DOJ must prepare an annual report that summarizes the information submitted to it by law enforcement agencies and that describes the methods and conclusions of its analysis of the information.

law enforcement training and standards

Under current law, no person may be appointed as a law enforcement officer unless the person has been certified by the Law Enforcement Standards Board (LESB) after completing a training program approved by LESB. Currently, LESB must establish minimum educational and training standards for law enforcement officers and minimum curriculum requirements for law enforcement officer training programs. The bill requires LESB to ensure that its law enforcement training program include instruction designed to prevent the use of race, racial profiling, racial stereotyping, or other race-based discrimination or selection as a basis for detaining, searching, or arresting a person or for otherwise treating a person differently from persons of other races.

Under current law, state and local law enforcement agencies must have a written policy or standard regulating the use of force by law enforcement officers in the performance of their duties. State and local law enforcement agencies must also establish a specific procedure for processing and resolving complaints by any person regarding the conduct of a law enforcement officer employed by the agency.

The bill requires state and local law enforcement agencies also to adopt, by January 1, 2017, a written policy that prohibits a law enforcement officer employed by the agency from stopping, detaining, searching, or arresting a person based solely on any of the following: 1) the person's race; 2) a racial stereotype; 3) a profile of persons who commit or are suspected of committing crimes, or a category of crimes, if the profile is based solely or primarily on the race of those persons; or 4) any other method of racially discriminatory or racially selective enforcement.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB937,1 Section 1. 15.257 (3) of the statutes is created to read:

AB937,4,8 15.257 (3) Council on racial profiling and other discriminatory policing practices. There is created in the department of justice a council on racial profiling and other discriminatory policing practices, as defined in s. 165.847 (1) (d), that shall have the duties set forth in s. 165.847. The chairperson of the council shall be the governor or his or her designee. Additionally, the council shall consist of the following members, appointed by the governor or his designee, who shall serve for 2-year terms and may be appointed for a maximum of 2 consecutive terms:

AB937,4,9 (a) A person representing the interests of each of the following communities:

AB937,4,10 1. Persons of color.

AB937,4,11 2. Persons who are gay, lesbian, bisexual, transsexual, or queer.

AB937,4,12 3. Persons who are homeless.

AB937,4,13 4. Persons who are Muslim.

AB937,4,14 5. Persons who are not legally present in the United States.

AB937,4,15 6. Women.

AB937,4,16 7. Persons with disabilities.

AB937,4,17 (b) A person representing a police union.

AB937,4,18 (c) A representative of the Wisconsin Bar Association.

AB937,2 Section 2. 66.0511 (title) of the statutes is amended to read:

AB937,4,21 66.0511 (title) Law enforcement agency policies on use of force, race-based law enforcement, and citizen complaint procedures.

AB937,3 Section 3. 66.0511 (2m) of the statutes is created to read:

AB937,5,10 66.0511 (2m) Policy prohibiting race-based law enforcement activity. Each person in charge of a law enforcement agency shall, not later than January 1, 2017, adopt a written policy that prohibits a law enforcement officer employed by the agency from stopping, detaining, searching, or arresting a person based solely or primarily on the person's actual or perceived race or ethnicity; on a racial stereotype; on a profile of persons who commit or are suspected of committing crimes, or a category of crimes, if the profile is based solely or primarily on the race of those persons; or on any other method of racially discriminatory or racially selective enforcement.

AB937,4 Section 4. 165.10 of the statutes is created to read:

AB937,5,17 165.10 Civil rights enforcement. If any person, whether or not acting under color of law, interferes with the exercise or enjoyment by any individual of a right secured by the constitution or laws of the United States, or of a right secured by the constitution or laws of this state, the attorney general may bring an action for injunction or other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right secured.

AB937,5 Section 5. 165.842 of the statutes is created to read:

AB937,5,20 165.842 Motor vehicle stops; collection and analysis of information; annual report. (1) Definitions. In this section:

AB937,5,21 (a) "Department" means the department of justice.

AB937,5,22 (b) "Law enforcement agency" has the meaning given in s. 165.77 (1) (b).

AB937,6,2 (c) "Law enforcement officer" means a person who is employed by a law enforcement agency for the purpose of detecting and preventing crime and enforcing laws or ordinances and who is authorized to make arrests for violations of the laws or ordinances that the person is employed to enforce, whether that enforcement authority extends to all laws or ordinances or is limited to specific laws or ordinances.