[First Reprint]

 

 

ASSEMBLY SUBSTITUTE FOR

 

 

SENATE COMMITTEE SUBSTITUTE FOR

SENATE, Nos. 429 and 1422

 

 

STATE OF NEW JERSEY

210th LEGISLATURE

 

ADOPTED NOVEMBER 18, 2002

 

Sponsored by:

Senator WAYNE R. BRYANT

District 5 (Camden and Gloucester)

Senator WILLIAM L. GORMLEY

District 2 (Atlantic)

Senator NIA H. GILL

District 34 (Essex and Passaic)

Senator JOSEPH CHARLES, JR.

District 31 (Hudson)

Assemblyman WILLIAM D. PAYNE

District 29 (Essex and Union)

Assemblyman WILFREDO CARABALLO

District 29 (Essex and Union)

Assemblyman NEIL M. COHEN

District 20 (Union)

Assemblyman GORDON M. JOHNSON

District 37 (Bergen)

Assemblyman JOHN F. MCKEON

District 27 (Essex)

 

Co-Sponsored by:

Senators Furnari, Girgenti, Martin, Turner, Adler, Suliga, Codey, Baer, Assemblymen Tucker, Eagler, Edwards, Gusciora and Assemblywoman Watson Coleman

 

SYNOPSIS

      Criminalizes deprivation of civil rights, including racial profiling, by public officials.

 

CURRENT VERSION OF TEXT

      As amended by the Senate on February 27, 2003.

An Act concerning certain acts of official misconduct involving deprivation of civil rights by public officials and supplementing chapter 30 of Title 2C of the New Jersey Statutes.

 

      Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

      1. The Legislature finds and declares that:

      a. Public confidence in the institutions of government is undermined when an official engages in any form of misconduct involving the official's office.

      b. Such misconduct, and the corresponding damage to the public confidence, impairs the ability of government to function properly, fosters mistrust and engenders disrespect for government and public servants.

      c. A particular concern arises when a law enforcement official, duly entrusted to protect the public safety and impartially enforce the laws, abuses that trust by unlawfully depriving persons of their civil rights, especially in the context of racial profiling.

      d. It is important to ensure that law enforcement officers are prohibited from using racial characteristics or color, either alone or in conjunction with other composite characteristics such as a generalized vehicle description or the age of the driver or passengers, as the basis for initiating an investigative stop.

      e. Existing laws must be amended to provide a greater deterrent to this type of conduct, as well as to enhance other provisions of the law targeting official misconduct.

      f. Accordingly, it is in the public interest to strengthen our laws that define and punish acts of official misconduct by members of law enforcement and other public servants.

 

      2. a. A public servant acting or purporting to act in an official capacity commits the crime of official deprivation of civil rights if, knowing that his conduct is unlawful, and acting with the purpose to intimidate or discriminate against an individual or group of individuals because of race, color, religion, gender, 1[age,]1 handicap, sexual orientation or ethnicity, the public servant: (1) subjects another to unlawful arrest or detention, including, but not limited to, motor vehicle investigative stops, search, seizure, dispossession, assessment, lien or other infringement of personal or property rights; or (2) denies or impedes another in the lawful exercise or enjoyment of any right, privilege, power or immunity.

      b. (1) Except as provided in paragraphs (2) and (3) of this subsection, a public servant who violates the provisions of subsection a. of this section is guilty of a crime of the third degree.

      (2) If bodily injury results from depriving a person of a right or privilege in violation of subsection a. of this section, the public servant is guilty of a crime of the second degree.

      (3) If, during the course of violating the provisions of this section, a public servant commits or attempts or conspires to commit murder, manslaughter, kidnapping or aggravated sexual assault against a person who is being deprived of a right or privilege in violation of subsection a. of this section, the public servant is guilty of a crime of the first degree.

      c. Notwithstanding the provisions of N.J.S.2C:1-8 or any other law, a conviction of official deprivation of civil rights under this section shall not merge with a conviction of any other criminal offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation of this section and any other criminal offense.

      d. Proof that a public servant made a false statement, prepared a false report, or, if the agency that employs the public servant, the Attorney General or the county prosecutor having supervisory authority over the agency required a report to be prepared, failed to prepare a report concerning the conduct that is the subject of the prosecution, shall give rise to an inference that the actor knew his conduct was unlawful.

      e. For purposes of this section, an act is unlawful if it violates the Constitution of the United States or the Constitution of this State, or if it constitutes a criminal offense under the laws of this State.

 

      3. a. A person commits the crime of pattern of official misconduct if he commits two or more acts that violate the provisions of N.J.S.2C:30-2 or section 2 of P.L. , c. (C. ) (now pending before the Legislature as this bill). It shall not be a defense that the violations were not part of a common plan or scheme, or did not have similar methods of commission.

      b. Pattern of official misconduct is a crime of the second degree if one of the acts committed by the defendant is a first or second degree crime; otherwise, it is a crime of the third degree, provided, however, that the presumption of nonimprisonment set forth in subsection e. of N.J.S.2C:44-1 for persons who have not previously been convicted of an offense shall not apply. Notwithstanding the provisions of N.J.S.2C:1-8 or any other law, a conviction of pattern of official misconduct shall not merge with a conviction of official misconduct, official deprivation of civil rights, or any other criminal offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation of N.J.S.2C:30-2 and sections 2 and 3 of P.L. , c. (C.           )and (C. ) (now pending before the Legislature as this bill).

 

      1[4. a. There is established the Office of the Independent Prosecutor to investigate and prosecute criminal civil rights violations involving any public servant. For purposes of Article V, Section IV, Paragraph 1 of the New Jersey Constitution, the office shall be in, but not of, the Department of Law and Public Safety. The Independent Prosecutor shall be appointed by, and serve at the pleasure of, the Governor with the advice and consent of the Senate and be under the direction and supervision of the Governor. Any person appointed as Independent Prosecutor shall have had prosecutorial experience, including experience in the litigation of criminal cases.

      b. The Independent Prosecutor may appoint such personnel, including attorneys and clerical personnel, as necessary to carry out the duties of the office. Personnel transferred to the Office of the Independent Prosecutor from any other department in State government pursuant to this section shall be transferred with all tenure rights and any rights or protections provided by Title 11A of the New Jersey Statutes or other applicable statutes and any pension law or retirement system.

      c. The Independent Prosecutor shall investigate and, if warranted, prosecute cases referred to it where criminal civil rights violations involving any public servant have been alleged. The office shall prioritize the cases referred for prosecution or other litigation and shall assist referring entities in establishing priorities among investigations or cases to be disposed of by the entities themselves.

      d. (1) The Independent Prosecutor shall designate a section of the office for the purpose of establishing a liaison and continuing communication between the Department of Law and Public Safety, the Division of State Police, such local government units as may be necessary or practicable, and interested groups, organizations and associations in the community.

      (2) The section of the office acting as the liaison shall establish procedures for: (a) receiving notice from all entities enumerated in paragraph (1) of this subsection of any case in which a criminal civil rights violation by a public servant is suspected or has been substantiated; (b) receiving referrals for the investigation of alleged violations; (c) receiving referrals for the prosecution of violations; (d) receiving and referring information regarding cases, administrative or otherwise, under investigation by any department or other entity to the appropriate authority; and (e) providing information to and coordinating information among any referring entities on pending cases of criminal civil rights violations which are under investigation or being litigated or prosecuted. The liaison section of the office shall maintain a record of every referral or investigation.

      e. The Independent Prosecutor shall establish standards of performance for the office, which shall include, but not be limited to, recording the cases referred to the office by other entities, investigating cases of alleged criminal civil rights violations in accordance with the priorities established by the Independent Prosecutor, recording the disposition of the cases referred to the office, and making recommendations to the Governor and the Legislature as to any procedural, regulatory, or statutory changes which may be necessary to carry out the provisions of this act.

      f. The Independent Prosecutor shall maintain a data base which includes:

      (1) referrals by other entities; and

      (2) reports of cases prosecuted or litigated and the results of such proceedings, which shall include identification of the referring entity, type of violation, disposition of case, and such other data as may be necessary to the work of the office and the referring entities.

      g. The Independent Prosecutor shall have access to all necessary information in the possession of the State or local public entities, including individual case files and intelligence information compiled and maintained by the Division of State Police in the Department of Law and Public Safety.

      h. The Independent Prosecutor shall:

      (1) confer from time to time with departments or other units of State government which have units which investigate criminal civil rights violations in order to coordinate activities, share information, and provide any assistance necessary to any State agency in overseeing administrative enforcement activities;

      (2) formulate and evaluate proposals for legislative, administrative and judicial initiatives to strengthen enforcement of criminal civil rights statutes;

      (3) in connection with criminal civil rights enforcement activities, act as the liaison for the Executive Branch of government with agencies involved in criminal civil rights enforcement outside the Executive Branch, including federal agencies and the Judiciary; and

      (4) provide an annual report to the Governor and the Legislature, no later than March 1 of each year, summarizing the activities of the Independent Prosecutor for the preceding calendar year, including, but not limited to, the number of cases referred, the number of cases investigated, the number of cases in which action was taken against a public servant, the number of criminal cases prosecuted and the number of convictions procured.

      i. The Independent Prosecutor shall have access to all information concerning criminal civil rights enforcement activities in the possession of all State departments and agencies. The office shall meet on a regular basis with representatives of State departments and agencies and county prosecutors to set specific goals and strategies for the most effective resolution of cases of criminal civil rights violations by public servants, whether by criminal, civil, or administrative enforcement action, or a combination thereof.

      j. The Legislature shall annually appropriate such sums as may be necessary for the operation of the Office of the Independent Prosecutor.]1

 

      1[5. a. Every allegation of a violation of this State's criminal civil rights laws shall be made on a standard complaint form which shall be prescribed by the Attorney General within 60 days of the effective date of this act.

      b. The Independent Prosecutor shall determine within 120 days of the receipt of a completed standard complaint form required under subsection a. of this section whether further action on the complaint shall be taken.]1

 

      1[6.] 4.1 This act shall take effect immediately.