Can a NY county require municipal police departments inside the county to report bias-motivated crime incidents to the county?

Subject

Westchester County may require municipal police bias-crime reporting under its home-rule police power, without Penal Law preemption

Plain-English summary

Westchester County's legislature was considering a local law requiring municipal police departments within the county to report bias-related incidents to the county's Department of Public Safety. A bias-related incident would be defined as an offense or unlawful act that, after investigation, was or appeared to be motivated all or in part by race, ethnicity/national origin, religion, sexual orientation, gender, age, or disability. The county's Committee on Legislation had found a recent increase in bias-related crimes and identified two purposes for the legislation: (1) dissemination of county-wide bias-crime statistics to local police, helping cooperation and pattern detection; and (2) using county-level statistics to evaluate whether the state Penal Law needs amendment or stronger penalties.

The AG said the county had authority to enact the local law.

The reasoning followed the standard New York home-rule analysis.

Home-rule grant. NY Const Art IX § 2(c) and Municipal Home Rule Law § 10(1)(ii)(a)(12) give local governments broad police power to legislate on "government, protection, order, conduct, safety, health and well-being of persons or property therein" (New York State Club Association; People v Cook). The proposed bias-crime reporting law fits squarely within that grant: it concerns law enforcement coordination and public safety.

Limits on home rule. A local law cannot be inconsistent with state law and cannot intrude on a field the legislature has preempted. Preemption can come from express legislative declaration or from a comprehensive and detailed regulatory scheme (Incorporated Village of Nyack v Daytop Village). In a preempted field, a local law is inconsistent if it prohibits conduct state law accepts or imposes restrictions beyond state law's (Vatore v Consumer Affairs).

The Penal Law's coverage of bias-related crime is limited:

• Penal Law § 240.30(3) makes aggravated harassment in the second degree (class A misdemeanor) include physical contact, attempts, or threats against a person motivated by race, color, religion, or national origin.
• Penal Law § 240.31 makes aggravated harassment in the first degree (class E felony) cover damage to religious premises and recidivism of § 240.30(3) offenses.
• Penal Law § 240.21 covers aggravated disorderly conduct at religious services.

The AG had previously concluded that the Penal Law generally has preemptive effect (Informal Opinion 90-77). But preemption is field-specific. The Penal Law preempts substantive criminal definitions and penalties; it does not preempt reporting requirements aimed at law enforcement coordination and statistical analysis. Reporting is administrative, not criminal definition. The county's law would not create new crimes or modify existing ones; it would just require police agencies to report incidents that already constitute crimes (or appear to be motivated by bias).

The DCJS voluntary statewide program (under Executive Law § 837(4)(a)) does not occupy the field either. It is voluntary, not mandatory. State legislators have not made bias-crime reporting a comprehensive regulatory scheme. The county's mandatory reporting requirement for municipalities within its boundaries supplements, rather than conflicts with, the voluntary statewide program.

On the inconsistency front, the AG applied People v Cook's rule: where state law is silent or does not preempt, a local law is not "inconsistent" merely because it regulates a subject the state has not addressed. That kind of local supplementation is the essence of home rule.

The opinion's footnote describes the DCJS Bias Crime Incident Reporting Program in detail: voluntary submission of monthly reports identifying crime type, bias type, victim and offender characteristics, and case status; analysis and information sharing through DCJS's Office of Justice Systems Analysis; resources available to law enforcement and policymakers.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why doesn't the Penal Law preempt this?

Because the Penal Law and the proposed local law operate in different functional spaces. The Penal Law defines crimes and sets penalties. The local law is about reporting, recordkeeping, and coordination. Both can coexist: state law tells officers what the crime is and the consequence; county law tells local agencies what to report and to whom.

Could the county require reporting from state police or federal agents?

Probably not. State police are state employees subject to state direction; federal agents are not subject to county legislation. The reporting mandate runs to municipal police departments within the county, which are governed by their home rules and by county legislation within its jurisdiction. State-level reporting to DCJS continues to be voluntary as a matter of state policy.

What if a state law later mandated state-wide reporting?

That would change the analysis. A comprehensive state mandate could either preempt local reporting requirements entirely or supplement them, depending on how it was written. The county's law would then need to be revisited against the new state framework.

Does the local law need a referendum?

The opinion does not discuss this directly. Reporting mandates on municipal departments are administrative in nature and do not fit the referendum triggers in Municipal Home Rule Law §§ 23, 24. Most local laws of this type take effect without a referendum.

How does this connect to federal hate-crime law?

18 USCA §§ 241 (conspiracy against rights) and 245 (federally protected activities) are the main federal hate-crime statutes existing in 1996. The opinion mentions them in the statutory header but does not analyze them in depth. Federal law operates concurrently with state law on these offenses; the county's reporting mandate is independent of either layer.

Statutory framework

NY Const Art IX § 2(c) and Municipal Home Rule Law § 10(1)(ii)(a)(12) provide the home-rule police power.

Penal Law § 240.21 covers aggravated disorderly conduct at religious services (class A misdemeanor).

Penal Law § 240.30(3) covers aggravated harassment in the second degree based on race, color, religion, or national origin (class A misdemeanor).

Penal Law § 240.31 covers aggravated harassment in the first degree (class E felony), reaching damage to religious premises and recidivism.

Executive Law § 837(4)(a) authorizes DCJS to maintain its voluntary statewide bias-crime reporting program.

18 USCA §§ 241 and 245 are the parallel federal civil rights crime statutes.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-5_pw.pdf

Original opinion text

NY CONST ART IX § 2(3); EXECUTIVE LAW § 837(4)(a); MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(12); PENAL LAW §§ 240.21, 240.30, 240.31; 18 USCA §§ 241, 245.

The county is authorized to consider enacting a local law to require that municipal police departments within the county report bias-related incidents to the county's commissioner of the Department of Public Safety.

February 23, 1996

Marilyn J. Slaatten, Esq.
County Attorney
County of Westchester
Michaelian Office Bldg. Rm. 600
148 Martine Avenue
White Plains, NY 10601

Informal Opinion
No. 96-5

Dear Ms. Slaatten:

You have asked whether the county is authorized to enact a local law mandating that municipal police departments within the county report bias-related incidents to the county's commissioner of the Department of Public Safety.

For purposes of this reporting requirement, the county would define a bias-related incident as an offense or unlawful act, which after investigation by law enforcement agencies, is or appears to be motivated all or in part by race, ethnicity/national origin, religion, sexual orientation, gender, age or disability. You have advised us that the county legislature's Committee on Legislation has found that bias-related crime incidents appear to have increased within Westchester County in recent years and pose a threat to the safety and lives of county residents, impact on the quality of life within the county, and threaten the fabric of society.

The Committee on Legislation specifically has defined two purposes to be served by the proposed legislation. First, dissemination of statistics gathered by county government may help communities to determine whether there are bias crime problems that require attention. Presumably, the county would gather information on the commission of bias crimes, which would be made available to police departments in municipalities throughout the county in order to promote law enforcement. Patterns of bias crimes and repetitive behavior by individuals could be viewed on a county-wide basis. The gathering of this information and its dissemination among police departments would allow cooperation among the various law enforcement agencies in the county, and may provide a useful tool for law enforcement.

Second, the Committee on Legislation has stated that the evaluation of statistics gathered at the county level will help determine whether there is a need for statutory amendment of the Penal Law and/or establishment of more severe penalties for bias-related incidents. The availability of this information will allow county officials, if warranted, to determine whether they wish to promote State legislative action.

Local governments, including counties, are authorized to adopt and amend local laws, consistent with the Constitution and general State laws, in relation to the government, protection, order, conduct, safety, health and well-being of persons or property therein. NY Const Art IX § 2(c); Municipal Home Rule Law § 10(1)(ii)(a)(12). This is the broad grant of police power to local governments. New York State Club Association, Inc. v City of New York, 69 NY2d 211 (1987); People v Cook, 34 NY2d 100, 105 (1974). In our view, the proposed local law falls within this grant of authority.

There are, however, two basic restrictions on the exercise of home rule power by a local government. A local law may not be inconsistent with the Constitution or a general State law. Second, a municipality may not exercise its police power in an area that has been preempted by State law. New York State Club Association, supra, p 217. An intent to preempt may be found from either a declaration of State policy by the Legislature or from the enactment of a comprehensive and detailed regulatory scheme in a particular area. Incorporated Village of Nyack v Daytop Village, Inc., 78 NY2d 500 (1981). Where the State Legislature has preempted an entire field, a local law regulating the same subject matter is inconsistent with the State's interests if it either (1) prohibits conduct which the State law accepts or at least does not specifically proscribe or (2) imposes restrictions beyond those imposed by State law. Vatore v Consumer Affairs, 83 NY2d 645, 649 (1994).

While in prior opinions we have concluded that provisions of the Penal Law are preemptive (see, Informal Opinion No. 90-77), in our view the mandatory reporting of bias-related crimes is not a subject which falls within the Penal Law's preemptive coverage. The extent of the Penal Law's current regulation in this area is the establishment of several specific bias-related crimes.

Under section 240.30(3) of the Penal Law, a person is guilty of aggravated harassment in the second degree when with intent to harass, annoy, threaten, or alarm another person, he or she strikes, shoves, kicks, or otherwise subjects another person to physical contact or attempts or threatens to do so because of the race, color, religion, or national origin of the person. Aggravated harassment in the second degree is a class A misdemeanor.

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten, or alarm another person because of the race, color, religion, or national origin of that person he or she damages premises primarily used for religious purposes, or acquired under the Religious Corporation Law and maintained for purposes of religious instruction, and the damage exceeds $50; or commits the crime of aggravated harassment in the second degree under subdivision 3 of section 240.30 of the Penal Law and has previously been convicted of that crime under section 240.30(3), or has previously been convicted of the crime of aggravated harassment in the first degree within the preceding ten years. Aggravated harassment in the first degree is a class E felony. Penal Law § 240.31. See also, Article 4 of the Civil Rights Law.

Under section 240.21 of the Penal Law, a person who makes unreasonable noise or disturbances while at a lawfully assembled religious service or within 100 feet of the service, with intent to cause annoyance or alarm or recklessly creating a risk thereof, is guilty of aggravated disorderly conduct. Aggravated disorderly conduct is a class A misdemeanor.

We note that the New York State Division of Criminal Justice Services requests that law enforcement agencies report bias-related incidents on a voluntary basis.[1]

As is clear from the county legislature's (Committee on Legislation) statement of legislative intent, the purpose of the proposed county legislation is separate and distinct from the Penal Law's coverage of this area. The local law would not modify or create any additional crimes. It is proposed as a mechanism to promote improved and more efficient law enforcement and a means to assess whether current State law offers an adequate response to bias crime in the county. Thus, the Penal Law does not preempt the proposed county legislation. Nor do we find that the county's proposed local law would be inconsistent with any general State law. Reiterating, the Penal Law does not regulate with respect to this subject matter and the New York State Division of Criminal Justice Services' incident reporting program is purely voluntary and is not the subject of any specific State legislation. See, Executive Law § 837(4)(a).

Where there is no design to preempt a field of regulation, local governments have been afforded latitude in exercising their police power to establish additional and greater protection. Vatore v Consumer Affairs, supra; New York State Club Association, supra. In the absence of preemption, the courts have specifically rejected as a test of "inconsistency" whether a local law regulates in a subject area that is not covered by State law.

If this were the rule, the power of local governments to regulate would be illusory. Any time that the State law is silent on a subject, the likelihood is that a local law regulating that subject will prohibit something permitted elsewhere in the State. That is the essence of home rule. A different situation is presented when the State has acted upon a subject, and in so acting has evidenced a desire that its regulations should preempt the possibility of varying local regulations. Under these circumstances a local law may be said to be inconsistent with State law because it prohibits something acceptable under the State law.

People v Cook, supra, 34 NY2d at 109; see also, Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 97-99 (1987).

In sum, the county's proposed local law is neither preempted by nor inconsistent with any State laws. The statement of local legislative intent, in our view, establishes a rational basis for the exercise of the police power to require reporting of bias-related crimes.

We conclude that the county is authorized to consider enacting a local law to require that municipal police departments within the county report bias-related incidents to the county's commissioner of the Department of Public Safety.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions

cc: Hon. Jeanine Pirro
District Attorney
Westchester County

[1] The primary objective of the Bias Crime Incident Reporting Program is to collect and report current information that can assist law enforcement agencies and policy makers in understanding the scope and nature of bias offenses. The ultimate goal is improvement in planning and executing effective apprehension, investigation, and prevention programs for bias-related incidents. Law enforcement agencies receive training in the identification, investigation, classification, and reporting of bias-motivated crime from the Division's Bureau for Municipal Police and the Bureau of Statistical Services. Members who have received training provide the Division with a monthly report which includes the type of crime; the type of bias (whether motivated by bias against race, religion, ethnicity/national origin, or sexual orientation); victim and offender characteristics (age, sex, race, and ethnicity); and the current status of the case. The Program maintains a database capable of receiving, processing, and analyzing reports from all law enforcement agencies in the State. This information is available to law enforcement, State Executive, and Legislative Branch policy makers and private non-profit organizations. The Program also serves as a general resource center on other issues relating to bias offenses. Division of Criminal Justice Services, Office of Justice Systems Analysis Bulletin, August 1991.