HP1077, LD 1475, item 1, An Act To Eliminate Profiling in Maine

An Act To Eliminate Profiling in Maine

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 5 MRSA c. 337-D is enacted to read:

CHAPTER 337-D

ACT TO ELIMINATE PROFILING IN MAINE

§ 4801. Short title

This chapter may be known and cited as "the Act To Eliminate Profiling in Maine."

§ 4802. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Governmental body. "Governmental body" means any department, agency, special purpose district or other instrumentality of the State or a local or Indian tribal government.

2. Hit rate. "Hit rate" means the percentage of stops and searches in which a law enforcement officer finds drugs, a gun or other illegal contraband that leads to an arrest. The hit rate is calculated by dividing the total number of searches by the number of searches that yield contraband.

3. Indian tribe. "Indian tribe" means a federally recognized Indian nation, tribe or band in the State.

4. Law enforcement agency. "Law enforcement agency" means an agency in the State charged with enforcement of state, county, municipal or federal laws or laws of an Indian tribe, with the prevention, detection or investigation of criminal, immigration or customs laws or with managing custody of detained persons in the State and includes, but is not limited to, municipal police departments, sheriffs' departments, the State Police, a university or college police department and the Department of Public Safety.

5. Law enforcement officer. "Law enforcement officer" means a state, county or municipal official or an official of an Indian tribe responsible for enforcing criminal, immigration or customs laws, including, but not limited to, a law enforcement officer who possesses a current and valid certificate issued by the Board of Trustees of the Maine Criminal Justice Academy pursuant to Title 25, section 2803-A.

6. Profiling. "Profiling" means the discriminatory practice of a law enforcement officer or law enforcement agency relying, to any degree, on actual or perceived race, gender, ethnicity, religion, socioeconomic status, ancestry or national origin in targeting an individual for routine or spontaneous investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure, except when there is trustworthy information, relevant to the locality and time frame, that links a person with a particular characteristic described in this subsection to an identified criminal incident or scheme.

7. Routine or spontaneous investigatory activities. "Routine or spontaneous investigatory activities" means the following activities by a law enforcement officer:

A. Interviews;

B. Traffic stops;

C. Pedestrian stops;

D. Frisks and other types of body searches;

E. Consensual or nonconsensual searches of the persons, property or possessions, including vehicles, of pedestrians and individuals using any form of public or private transportation;

F. Data collection and analysis, assessments and predicated investigations;

G. Inspections and interviews of entrants into the United States that are more extensive than those customarily carried out;

H. Immigration-related workplace investigations; and

I. Other types of law enforcement encounters for which information is compiled for or by the Office of the Attorney General or the Department of Public Safety, State Bureau of Identification.

§ 4803. Profiling prohibited

1. Profiling prohibited. In enforcing the laws of this State, a law enforcement officer or law enforcement agency may not engage in the practice of profiling or take any action that results from profiling.

2. Enforcement. The Attorney General or an individual injured by profiling may bring a civil action for declaratory or injunctive relief filed in the Superior Court.

A. In any action brought under this chapter, relief may be obtained against:

(1) A law enforcement agency that employed a law enforcement officer who engaged in profiling;

(2) A law enforcement officer who engaged in profiling; or

(3) A person with supervisory authority over a law enforcement officer or law enforcement agency that engaged in profiling.

B. Proof that the routine or spontaneous investigatory activities of law enforcement officers in a jurisdiction have had a disparate impact on individuals with a particular characteristic described in section 4802, subsection 6 constitutes prima facie evidence of a violation of this chapter.

C. In an action or proceeding to enforce this chapter against a governmental body, the court may award the prevailing plaintiff, other than the Attorney General or the State, costs, expert witness fees and any other reasonable attorney's fees.

§ 4804. Policies and procedures to eliminate profiling by law enforcement agencies

This section establishes policies and procedures to eliminate profiling by law enforcement agencies.

1. Prohibition on profiling. As provided in Title 25, section 2803-B, a law enforcement agency shall maintain policies and procedures to prohibit and eliminate profiling and cease existing practices that permit profiling.

2. Mandatory training. The training and certification requirements set by the Board of Trustees of the Maine Criminal Justice Academy pursuant to section 2803-A for all law enforcement officers must include annual anti-profiling education and training.

3. Administrative procedures. A law enforcement agency shall implement procedures for receiving, investigating and responding to complaints alleging profiling by law enforcement officers.

4. Data collection. A law enforcement agency shall collect data as required by the guidelines issued by the Attorney General under section 4806.

5. Other policies and procedures. The Attorney General may require law enforcement agencies to adopt any other policies and procedures the Attorney General determines appropriate to eliminate profiling by law enforcement agencies and law enforcement officers.

§ 4805. Attorney General procedures and programs to eliminate profiling

By March 15, 2020, in consultation with interested parties, including law enforcement agencies and community, professional, research, civil liberties and civil rights organizations, the Attorney General shall adopt rules for the operation of administrative complaint procedures and independent audit programs to ensure that programs and procedures provide an appropriate response to allegations of profiling by law enforcement officers or law enforcement agencies. Rules must contain guidelines and ensure the fairness, effectiveness and independence of the administrative complaint procedures and independent auditor programs. Rules adopted pursuant to this section are routine technical rules as defined in chapter 375, subchapter 2-A.

§ 4806. Data collection

1. Collection and compilation of data. By March 15, 2020, the Attorney General, in consultation with interested parties, including law enforcement agencies and community, professional, research, civil liberties and civil rights organizations, shall adopt rules and guidelines for the collection and compilation of data under subsection 2. Rules adopted pursuant to this subsection are routine technical rules as defined in chapter 375, subchapter 2-A.

2. Requirements. The rules adopted under subsection 1 must:

A. Require the collection of data on all routine or spontaneous investigatory activities;

B. Require that the data collected:

(1) Be collected by race, gender, ethnicity, religion, socioeconomic status, ancestry or national origin, as perceived by the law enforcement officer;

(2) Include the date, time and location of such investigatory activities;

(3) Include detail sufficient to permit an analysis of whether a law enforcement agency is engaging in profiling; and

(4) Exclude personally identifiable information;

C. Provide that a standardized form be made available to law enforcement agencies for the submission of collected data to the Office of the Attorney General, the Department of Public Safety and the Maine Human Rights Commission;

D. Require that law enforcement agencies compile data on the standardized form made available under paragraph C and submit the form to the Office of the Attorney General, the Department of Public Safety and the Maine Human Rights Commission;

E. Require that law enforcement agencies maintain all data collected under this chapter for not less than 5 years;

F. Include guidelines for setting comparative benchmarks, consistent with best practices, against which collected data must be measured;

G. Require the Office of the Attorney General to:

(1) Analyze the data for any statistically significant disparities between those who are identified as of an ethnic or racial minority or of a gender, religion or socioeconomic status and those who are not, including:

(a) In the percentage of drivers or pedestrians stopped relative to the population traveling through the neighborhood;

(b) In the hit rate; and

(2) By October 15, 2022, and annually thereafter:

(a) Prepare and provide a report regarding the findings of the analysis conducted under subparagraph (1) to the joint standing committees of the Legislature having jurisdiction over judiciary matters and criminal justice and public safety matters; and

(b) Make the report available to the public, including posting on the publicly accessible websites of the Office of the Attorney General, the Department of Public Safety and the Maine Human Rights Commission; and

H. Protect the privacy of individuals whose data is collected by:

(1) Limiting the use of the data collected under this chapter to the purposes set forth in this chapter;

(2) Except as otherwise provided in this chapter, limiting access to the data collected under this chapter to those employees or agents of the State or of local governments or of governments of Indian tribes who require access in order to fulfill the purposes set forth in this chapter;

(3) Requiring contractors or other nongovernmental agents who are permitted access to the data collected under this chapter to sign use agreements limiting use of the data to purposes set forth in this chapter; and

(4) Requiring the maintenance of adequate security measures to prevent unauthorized access to the data collected under this chapter.

§ 4807. Publication of data

The Office of the Attorney General shall provide to the joint standing committees of the Legislature having jurisdiction over judiciary matters and criminal justice and public safety matters and make available to the public, together with each annual report described in section 4806, the data collected pursuant to this chapter. Data reported may not include personally identifiable information.

§ 4808. Limitations on publication of data

The name or identifying information of a law enforcement officer, complainant or any other individual involved in any activity for which data is collected and compiled under this chapter is confidential and may not be released to the public or disclosed to any person, except as necessary to comply with this chapter or, if it is information regarding a particular person, to that person.

§ 4809. Reporting by the Attorney General

1. Reports. By October 15, 2021, and annually thereafter, the Attorney General shall provide to the committees of the Legislature having jurisdiction over judiciary matters and criminal justice and public safety matters a report on profiling by law enforcement agencies.

2. Scope of reports. Each report pursuant to subsection 1 must include:

A. A summary of data collected under section 4806 and from any other reliable source of information regarding profiling in the State;

B. A discussion of the findings in the most recent report prepared by the Office of the Attorney General under section 4806;

C. The status of the adoption and implementation of policies and procedures by law enforcement agencies as required by section 4806; and

D. Any recommendations for other policies and procedures that the Attorney General determines would facilitate the elimination of profiling.

Sec. 2. 25 MRSA §2803-B, sub-§1, ¶L, as amended by PL 2013, c. 147, §19, is further amended to read:

L. Mental illness and the process for involuntary commitment; and

Sec. 3. 25 MRSA §2803-B, sub-§1, ¶M, as enacted by PL 2013, c. 147, §20, is amended to read:

M. Freedom of access requests. The chief administrative officer of a municipal, county or state law enforcement agency shall certify to the board annually that the agency has adopted a written policy regarding procedures to deal with a freedom of access request and that the chief administrative officer has designated a person who is trained to respond to a request received by the agency pursuant to Title 1, chapter 13 . ; and

Sec. 4. 25 MRSA §2803-B, sub-§1, ¶N is enacted to read:

N. Profiling, as provided in Title 5, chapter 337-D.

summary

This bill creates the Act To Eliminate Profiling in Maine, which establishes policies and procedures for law enforcement officers and law enforcement agencies to prohibit and eliminate profiling. The bill defines profiling as the discriminatory practice of a law enforcement officer or law enforcement agency relying, to any degree, on actual or perceived race, gender, ethnicity, religion, socioeconomic status, ancestry or national origin in targeting an individual for routine or spontaneous investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure, except when there is trustworthy information, relevant to the locality and time frame, that links a person with a particular characteristic to an identified criminal incident or scheme.

Specifically, the bill directs the Board of Trustees of the Maine Criminal Justice Academy to establish policies and procedures to eliminate profiling and require mandatory training and anti-profiling education by all law enforcement agencies in the State. All law enforcement agencies must adopt written policies on profiling. The bill requires law enforcement agencies to implement procedures for receiving, investigating and responding to complaints of profiling. The bill also directs the Attorney General to adopt rules and guidelines for collecting and reporting data regarding profiling. Rules must define what data must be collected, how it must be collected and how the data may be reported and used to eliminate profiling and inform law enforcement, the public and the joint standing committees of the Legislature having jurisdiction over judiciary matters and criminal justice and public safety matters.

HP1077 LD 1475	Session - 129th Maine Legislature		LR 2018 Item 1
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