| Racial
Profiling . . . It’s Illegal! On March 14, 2003, Governor McGreevey signed into law Senate Bill No. S-429, (P.L.2003, c.31), which now criminalizes the knowing deprivation of civil rights by public officials. Racial profiling by a law enforcement officer is now a third-degree crime. If bodily injury results from the knowing deprivation of a person’s civil rights, the crime is one of the second degree. The offense is a first-degree crime if the public servant commits or attempts to commit murder, manslaughter, kidnapping or aggravated sexual assault against the victim. The new law also makes it a second-, or third-degree crime, depending on the underlying offense, for any public official to engage in a "pattern of official misconduct" by committing two or more acts of official misconduct or two or more acts of the deprivation of civil rights. According to the bill’s sponsor, Senator Wayne R. Bryant, "this new law will end the practice of knowingly intimidating or discriminating against individuals." Now, "every individual — regardless of race, color, religion, gender, handicap, sexual orientation or ethnicity — is guaranteed their basic constitutional rights under the law," said Bryant. The responsibility of investigating and prosecuting allegations of misconduct by law enforcement officers, elected and appointed public officials at all levels of government, and by other public officials has been placed on the new Office of Government Integrity, established in May 2002 by Attorney General Executive Directive 2002-2. All criminal complaints charging the official deprivation of civil rights are to be forwarded to the Office of Government Integrity for review. That office will take such further action as it deems warranted, which may include criminal investigation and prosecution directly by the Office of Government Integrity itself, or by referral of the matter to another law enforcement entity for investigation or prosecution. Significantly, the final version of the law enacted does not prohibit the police from initiating investigative stops or detentions based on information contained in a "be on the lookout" description. The law also does not prevent an officer from using race or ethnicity as a means of identifying or apprehending a known suspect or wanted person if that information is provided as one of several identifying characteristics of the wanted person. In full, this new law reads as follows:
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. 2C:30-6. Crime of official deprivation of civil rights by public servant. 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, 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. 2C:30-7. Pattern of Official Misconduct; crime; penalty. 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.2003, c.31 (C.2C:30-6). 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.2003, c.31 (C. 2C:30-6 and C.2C:30-7). |
