[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2355 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                S. 2355

 To eliminate racial, religious, and other discriminatory profiling by 
                law enforcement, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2019

  Mr. Cardin (for himself, Mr. Brown, Ms. Warren, Mrs. Feinstein, Ms. 
Harris, Mr. Blumenthal, Mr. Murphy, Mr. Coons, Ms. Hirono, Mr. Durbin, 
Mr. Markey, Mr. Van Hollen, Ms. Stabenow, Ms. Klobuchar, Ms. Smith, Mr. 
 Booker, Mr. Udall, Mr. Merkley, Mr. Wyden, Mr. Sanders, Ms. Cantwell, 
    Mrs. Murray, Ms. Duckworth, Mr. Kaine, Mrs. Gillibrand, and Mr. 
   Menendez) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To eliminate racial, religious, and other discriminatory profiling by 
                law enforcement, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``End Racial and 
Religious Profiling Act of 2019'' or ``ERRPA''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
                TITLE I--PROHIBITION OF RACIAL PROFILING

Sec. 101. Prohibition.
Sec. 102. Enforcement.
    TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW 
                          ENFORCEMENT AGENCIES

Sec. 201. Policies to eliminate racial profiling.
TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE, LOCAL, AND 
                 INDIAN TRIBAL LAW ENFORCEMENT AGENCIES

Sec. 301. Policies required for grants.
Sec. 302. Involvement of Attorney General.
Sec. 303. Data collection demonstration project.
Sec. 304. Best practices development grants.
Sec. 305. Authorization of appropriations.
                       TITLE IV--DATA COLLECTION

Sec. 401. Attorney General to issue regulations.
Sec. 402. Publication of data.
Sec. 403. Limitations on publication of data.
   TITLE V--DEPARTMENT OF JUSTICE REGULATIONS AND REPORTS ON RACIAL 
                     PROFILING IN THE UNITED STATES

Sec. 501. Attorney General to issue regulations and reports.
                   TITLE VI--MISCELLANEOUS PROVISIONS

Sec. 601. Severability.
Sec. 602. Savings clause.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Covered program.--The term ``covered program'' means 
        any program or activity funded in whole or in part with funds 
        made available under--
                    (A) the Edward Byrne Memorial Justice Assistance 
                Grant Program under part E of title I of the Omnibus 
                Crime Control and Safe Streets Act of 1968 (34 U.S.C. 
                10150 et seq.); and
                    (B) the ``Cops on the Beat'' program under part Q 
                of title I of the Omnibus Crime Control and Safe 
                Streets Act of 1968 (34 U.S.C. 10381 et seq.), except 
                that no program, project, or other activity specified 
                in section 1701(b)(13) of such part shall be a covered 
                program under this paragraph.
            (2) Governmental body.--The term ``governmental body'' 
        means any department, agency, special purpose district, or 
        other instrumentality of Federal, State, local, or Indian 
        tribal government.
            (3) Hit rate.--The term ``hit rate'' means the percentage 
        of stops and searches in which a law enforcement officer finds 
        drugs, a gun, or something else 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. The hit rate 
        is complementary to the rate of false stops.
            (4) Indian tribe.--The term ``Indian tribe'' has the 
        meaning given the term in section 102 of the Federally 
        Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).
            (5) Law enforcement agency.--The term ``law enforcement 
        agency'' means any Federal, State, local, or Indian tribal 
        public agency engaged in the prevention, detection, or 
        investigation of violations of criminal, immigration, or 
        customs laws.
            (6) Law enforcement agent.--The term ``law enforcement 
        agent'' means any Federal, State, local, or Indian tribal 
        official responsible for enforcing criminal, immigration, or 
        customs laws, including police officers and other agents of a 
        law enforcement agency.
            (7) Racial profiling.--The term ``racial profiling'' means 
        the practice of a law enforcement agent or agency relying, to 
        any degree, on actual or perceived race, ethnicity, national 
        origin, religion, gender, gender identity, or sexual 
        orientation in selecting which individual to subject to 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 
        timeframe, that links a person with a particular characteristic 
        described in this paragraph to an identified criminal incident 
        or scheme.
            (8) Routine or spontaneous investigatory activities.--The 
        term ``routine or spontaneous investigatory activities'' means 
        the following activities by a law enforcement agent:
                    (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 individuals using any form of public or private 
                transportation, including motorists and pedestrians.
                    (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.
                    (I) Such other types of law enforcement encounters 
                compiled for or by the Federal Bureau of Investigation 
                or the Department of Justice Bureau of Justice 
                Statistics.
            (9) Reasonable request.--The term ``reasonable request'' 
        means all requests for information, except for those that--
                    (A) are immaterial to the investigation;
                    (B) would result in the unnecessary disclosure of 
                personal information; or
                    (C) would place a severe burden on the resources of 
                the law enforcement agency given its size.
            (10) State.--The term ``State'' means each of the 50 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, and any other territory or possession of the United 
        States.
            (11) Unit of local government.--The term ``unit of local 
        government'' means--
                    (A) any city, county, township, town, borough, 
                parish, village, or other general purpose political 
                subdivision of a State;
                    (B) any law enforcement district or judicial 
                enforcement district that--
                            (i) is established under applicable State 
                        law; and
                            (ii) has the authority to, in a manner 
                        independent of other State entities, establish 
                        a budget and impose taxes; or
                    (C) any Indian tribe that performs law enforcement 
                functions, as determined by the Secretary of the 
                Interior.

                TITLE I--PROHIBITION OF RACIAL PROFILING

SEC. 101. PROHIBITION.

    No law enforcement agent or law enforcement agency shall engage in 
racial profiling.

SEC. 102. ENFORCEMENT.

    (a) Remedy.--The United States, or an individual injured by racial 
profiling, may enforce this title in a civil action for declaratory or 
injunctive relief, filed either in a State court of general 
jurisdiction or in a district court of the United States.
    (b) Parties.--In any action brought under this title, relief may be 
obtained against--
            (1) any governmental body that employed any law enforcement 
        agent who engaged in racial profiling;
            (2) any agent of such body who engaged in racial profiling; 
        and
            (3) any person with supervisory authority over such agent.
    (c) Nature of Proof.--Proof that the routine or spontaneous 
investigatory activities of law enforcement agents in a jurisdiction 
have had a disparate impact on individuals with a particular 
characteristic described in section 2(7) shall constitute prima facie 
evidence of a violation of this title.
    (d) Attorney's Fees.--In any action or proceeding to enforce this 
title against any governmental body, the court may allow a prevailing 
plaintiff, other than the United States, reasonable attorney's fees as 
part of the costs, and may include expert fees as part of the 
attorney's fee.

    TITLE II--PROGRAMS TO ELIMINATE RACIAL PROFILING BY FEDERAL LAW 
                          ENFORCEMENT AGENCIES

SEC. 201. POLICIES TO ELIMINATE RACIAL PROFILING.

    (a) In General.--Federal law enforcement agencies shall--
            (1) maintain adequate policies and procedures designed to 
        eliminate racial profiling; and
            (2) cease existing practices that permit racial profiling.
    (b) Policies.--The policies and procedures described in subsection 
(a)(1) shall include--
            (1) a prohibition on racial profiling;
            (2) training on racial profiling issues as part of Federal 
        law enforcement training;
            (3) the collection of data in accordance with the 
        regulations issued by the Attorney General under section 401;
            (4) procedures for receiving, investigating, and responding 
        meaningfully to complaints alleging racial profiling by law 
        enforcement agents; and
            (5) any other policies and procedures the Attorney General 
        determines to be necessary to eliminate racial profiling by 
        Federal law enforcement agencies.

TITLE III--PROGRAMS TO ELIMINATE RACIAL PROFILING BY STATE, LOCAL, AND 
                 INDIAN TRIBAL LAW ENFORCEMENT AGENCIES

SEC. 301. POLICIES REQUIRED FOR GRANTS.

    (a) In General.--An application by a State, a unit of local 
government, or a State, local, or Indian tribal law enforcement agency 
for funding under a covered program shall include a certification that 
such State, unit of local government, or law enforcement agency, and 
any law enforcement agency to which it will distribute funds--
            (1) maintains adequate policies and procedures designed to 
        eliminate racial profiling; and
            (2) has eliminated any existing practices that permit or 
        encourage racial profiling.
    (b) Policies.--The policies and procedures described in subsection 
(a)(1) shall include--
            (1) a prohibition on racial profiling;
            (2) training on racial profiling issues as part of law 
        enforcement training;
            (3) the collection of data in accordance with the 
        regulations issued by the Attorney General under section 401; 
        and
            (4) participation in an administrative complaint procedure 
        or independent audit program that meets the requirements of 
        section 302.
    (c) Effective Date.--This section shall take effect 12 months after 
the date of enactment of this Act.

SEC. 302. INVOLVEMENT OF ATTORNEY GENERAL.

    (a) Regulations.--
            (1) In general.--Not later than 6 months after the date of 
        enactment of this Act and in consultation with stakeholders, 
        including Federal, State, tribal, and local law enforcement 
        agencies and community, professional, research, and civil 
        rights organizations, the Attorney General shall issue 
        regulations for the operation of administrative complaint 
        procedures and independent audit programs to ensure that such 
        programs and procedures provide an appropriate response to 
        allegations of racial profiling by law enforcement agents or 
        agencies.
            (2) Guidelines.--The regulations issued under paragraph (1) 
        shall contain guidelines that ensure the fairness, 
        effectiveness, and independence of the administrative complaint 
        procedures and independent auditor programs.
    (b) Noncompliance.--If the Attorney General determines that the 
recipient of a grant from any covered program is not in compliance with 
the requirements of section 301 or the regulations issued under 
subsection (a), the Attorney General shall withhold, in whole or in 
part (at the discretion of the Attorney General), funds for one or more 
grants to the recipient under the covered program, until the recipient 
establishes compliance.
    (c) Private Parties.--The Attorney General shall provide notice and 
an opportunity for private parties to present evidence to the Attorney 
General that a recipient of a grant from any covered program is not in 
compliance with the requirements of this title.

SEC. 303. DATA COLLECTION DEMONSTRATION PROJECT.

    (a) Competitive Awards.--
            (1) In general.--The Attorney General may, through 
        competitive grants or contracts, carry out a 2-year 
        demonstration project for the purpose of developing and 
        implementing data collection programs on the hit rates for 
        stops and searches by law enforcement agencies. The data 
        collected shall be disaggregated by race, ethnicity, national 
        origin, gender, and religion.
            (2) Number of grants.--The Attorney General shall provide 
        not more than 5 grants or contracts under this section.
            (3) Eligible grantees.--Grants or contracts under this 
        section shall be awarded to law enforcement agencies that serve 
        communities where there is a significant concentration of 
        racial or ethnic minorities and that are not already collecting 
        data voluntarily.
    (b) Required Activities.--Activities carried out with a grant under 
this section shall include--
            (1) developing a data collection tool and reporting the 
        compiled data to the Attorney General; and
            (2) training of law enforcement personnel on data 
        collection, particularly for data collection on hit rates for 
        stops and searches.
    (c) Evaluation.--Not later than 3 years after the date of enactment 
of this Act, the Attorney General shall enter into a contract with an 
institution of higher education (as defined in section 101 of the 
Higher Education Act of 1965 (20 U.S.C. 1001)) to analyze the data 
collected by each of the grantees funded under this section.
    (d) Authorization of Appropriations.--There are authorized to be 
appropriated to carry out activities under this section--
            (1) $5,000,000, over a 2-year period, to carry out the 
        demonstration program under subsection (a); and
            (2) $500,000 to carry out the evaluation under subsection 
        (c).

SEC. 304. BEST PRACTICES DEVELOPMENT GRANTS.

    (a) Grant Authorization.--The Attorney General, through the Bureau 
of Justice Assistance, may make grants to States, local law enforcement 
agencies, and units of local government to develop and implement best 
practice devices and systems to eliminate racial profiling.
    (b) Use of Funds.--The funds provided under subsection (a) shall be 
used for programs that include the following purposes:
            (1) The development and implementation of training to 
        prevent racial profiling and to encourage more respectful 
        interaction with the public.
            (2) The acquisition and use of technology to facilitate the 
        accurate collection and analysis of data.
            (3) The development and acquisition of feedback systems and 
        technologies that identify officers or units of officers 
        engaged in, or at risk of engaging in, racial profiling or 
        other misconduct.
            (4) The establishment and maintenance of an administrative 
        complaint procedure or independent auditor program.
    (c) Equitable Distribution.--The Attorney General shall ensure that 
grants under this section are awarded in a manner that reserves an 
equitable share of funding for small and rural law enforcement 
agencies.
    (d) Application.--Each State, local law enforcement agency, or unit 
of local government desiring a grant under this section shall submit an 
application to the Attorney General at such time, in such manner, and 
accompanied by such information as the Attorney General may reasonably 
require.

SEC. 305. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as are necessary 
to carry out this title.

                       TITLE IV--DATA COLLECTION

SEC. 401. ATTORNEY GENERAL TO ISSUE REGULATIONS.

    (a) Regulations.--Not later than 6 months after the date of 
enactment of this Act, the Attorney General, in consultation with 
stakeholders, including Federal, State, and local law enforcement 
agencies and community, professional, research, and civil rights 
organizations, shall issue regulations for the collection and 
compilation of data under sections 201 and 301.
    (b) Requirements.--The regulations issued under subsection (a) 
shall--
            (1) provide for the collection of data on all routine or 
        spontaneous investigatory activities;
            (2) provide that the data collected shall--
                    (A) be collected by race, ethnicity, national 
                origin, gender, and religion, as perceived by the law 
                enforcement officer;
                    (B) include the date, time, and location of such 
                investigatory activities;
                    (C) include detail sufficient to permit an analysis 
                of whether a law enforcement agency is engaging in 
                racial profiling; and
                    (D) not include personally identifiable 
                information;
            (3) provide that a standardized form shall be made 
        available to law enforcement agencies for the submission of 
        collected data to the Department of Justice;
            (4) provide that law enforcement agencies shall compile 
        data on the standardized form made available under paragraph 
        (3), and submit the form to the Civil Rights Division and the 
        Department of Justice Bureau of Justice Statistics;
            (5) provide that law enforcement agencies shall maintain 
        all data collected under this Act for not less than 4 years;
            (6) include guidelines for setting comparative benchmarks, 
        consistent with best practices, against which collected data 
        shall be measured;
            (7) provide that the Department of Justice Bureau of 
        Justice Statistics shall--
                    (A) analyze the data for any statistically 
                significant disparities, including--
                            (i) disparities in the percentage of 
                        drivers or pedestrians stopped relative to the 
                        proportion of the population passing through 
                        the neighborhood;
                            (ii) disparities in the hit rate; and
                            (iii) disparities in the frequency of 
                        searches performed on racial or ethnic minority 
                        drivers and the frequency of searches performed 
                        on nonminority drivers; and
                    (B) not later than 3 years after the date of 
                enactment of this Act, and annually thereafter--
                            (i) prepare a report regarding the findings 
                        of the analysis conducted under subparagraph 
                        (A);
                            (ii) provide such report to Congress; and
                            (iii) make such report available to the 
                        public, including on a website of the 
                        Department of Justice; and
            (8) protect the privacy of individuals whose data is 
        collected by--
                    (A) limiting the use of the data collected under 
                this Act to the purposes set forth in this Act;
                    (B) except as otherwise provided in this Act, 
                limiting access to the data collected under this Act to 
                those Federal, State, local, or tribal employees or 
                agents who require such access in order to fulfill the 
                purposes for the data set forth in this Act;
                    (C) requiring contractors or other nongovernmental 
                agents who are permitted access to the data collected 
                under this Act to sign use agreements incorporating the 
                use and disclosure restrictions set forth in 
                subparagraph (A); and
                    (D) requiring the maintenance of adequate security 
                measures to prevent unauthorized access to the data 
                collected under this Act.

SEC. 402. PUBLICATION OF DATA.

    The Department of Justice Bureau of Justice Statistics shall 
provide to Congress and make available to the public, together with 
each annual report described in section 401, the data collected 
pursuant to this Act, excluding any personally identifiable information 
described in section 403.

SEC. 403. 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 Act shall not be--
            (1) released to the public;
            (2) disclosed to any person, except for--
                    (A) such disclosures as are necessary to comply 
                with this Act;
                    (B) disclosures of information regarding a 
                particular person to that person; or
                    (C) disclosures pursuant to litigation; or
            (3) subject to disclosure under section 552 of title 5, 
        United States Code (commonly known as the Freedom of 
        Information Act), except for disclosures of information 
        regarding a particular person to that person.

   TITLE V--DEPARTMENT OF JUSTICE REGULATIONS AND REPORTS ON RACIAL 
                     PROFILING IN THE UNITED STATES

SEC. 501. ATTORNEY GENERAL TO ISSUE REGULATIONS AND REPORTS.

    (a) Regulations.--In addition to the regulations required under 
sections 303 and 401, the Attorney General shall issue such other 
regulations as the Attorney General determines are necessary to 
implement this Act.
    (b) Reports.--
            (1) In general.--Not later than 2 years after the date of 
        enactment of this Act, and annually thereafter, the Attorney 
        General shall submit to Congress a report on racial profiling 
        by law enforcement agencies.
            (2) Scope.--Each report submitted under paragraph (1) shall 
        include--
                    (A) a summary of data collected under sections 
                201(b)(3) and 301(b)(3) and from any other reliable 
                source of information regarding racial profiling in the 
                United States;
                    (B) a discussion of the findings in the most recent 
                report prepared by the Department of Justice Bureau of 
                Justice Statistics under section 401(b)(7);
                    (C) the status of the adoption and implementation 
                of policies and procedures by Federal law enforcement 
                agencies under section 201 and by the State and local 
                law enforcement agencies under sections 301 and 302; 
                and
                    (D) a description of any other policies and 
                procedures that the Attorney General believes would 
                facilitate the elimination of racial profiling.

                   TITLE VI--MISCELLANEOUS PROVISIONS

SEC. 601. SEVERABILITY.

    If any provision of this Act, or the application of such a 
provision to any person or circumstance, is held to be 
unconstitutional, the remainder of this Act and the application of the 
remaining provisions of this Act to any person or circumstance shall 
not be affected thereby.

SEC. 602. SAVINGS CLAUSE.

    Nothing in this Act shall be construed--
            (1) to limit legal or administrative remedies under section 
        1979 of the Revised Statutes of the United States (42 U.S.C. 
        1983), section 210401 of the Violent Crime Control and Law 
        Enforcement Act of 1994 (34 U.S.C. 12601), the Omnibus Crime 
        Control and Safe Streets Act of 1968 (34 U.S.C. 10101 et seq.), 
        or title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
        seq.);
            (2) to affect any Federal, State, or tribal law that 
        applies to an Indian tribe because of the political status of 
        the tribe; or
            (3) to waive the sovereign immunity of an Indian tribe 
        without the consent of the tribe.
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