Florida Senate - 2018                                    SB 1726
       
       
        
       By Senator Torres
       
       
       
       
       
       15-01651-18                                           20181726__
    1                        A bill to be entitled                      
    2         An act relating to enforcement of federal laws;
    3         creating ch. 908, F.S., entitled “Federal Immigration
    4         Enforcement”; creating ss. 908.101-908.109, F.S.;
    5         providing a short title; providing legislative intent;
    6         providing definitions; prohibiting state and local law
    7         enforcement agencies, school law enforcement officers,
    8         and security agencies from certain actions for
    9         purposes of immigration enforcement; providing
   10         exceptions; requiring state and local law enforcement
   11         agencies to review confidentiality policies and revise
   12         such policies, if necessary; prohibiting state and
   13         local law enforcement agencies and health care
   14         providers from making an inquiry or recording
   15         information concerning the immigration status of
   16         certain persons; authorizing a limited inquiry and
   17         recording of information in certain circumstances;
   18         providing that certain persons who are unable to
   19         afford legal counsel are entitled to representation;
   20         requiring the Attorney General, K-12 public schools
   21         and public postsecondary educational institutions,
   22         hospitals, and courthouses to develop and publicize
   23         certain policies; requiring the Attorney General to
   24         prescribe a format for persons to submit a complaint;
   25         authorizing the Attorney General or a state attorney
   26         to institute injunctive proceedings; providing
   27         severability; providing an effective date.
   28  
   29         WHEREAS, the Legislature finds that one in five residents
   30  of the state is foreign-born and one in three children in the
   31  state has at least one immigrant parent, and
   32         WHEREAS, immigrants are valuable and essential members of
   33  our community and a relationship of trust between immigrants and
   34  state and local law enforcement agencies is central to public
   35  safety, and
   36         WHEREAS, the Legislature concurs in the recent finding and
   37  recommendation of President Barack Obama’s Task Force on 21st
   38  Century Policing that, whenever possible, state and local law
   39  enforcement agencies should not be involved in federal
   40  immigration enforcement, and
   41         WHEREAS, state and local law enforcement agencies operate
   42  with limited resources and personnel, and involvement in federal
   43  immigration enforcement diverts these already limited resources
   44  and personnel away from state and local matters, and
   45         WHEREAS, state and local law enforcement agencies are not
   46  reimbursed by the federal government for the full cost of
   47  responding to immigration holds, immigration detainers, hold
   48  requests, notification requests, and transfer requests, which
   49  can lead to the expenditure of resources to pay for detention
   50  time and the administrative costs of tracking and responding to
   51  requests from the federal government, and
   52         WHEREAS, unlike criminal detainers, which are supported by
   53  a judicial determination of probable cause, United States
   54  Immigration and Customs Enforcement (ICE) detainers are issued
   55  by immigration authorities without any authorization or
   56  oversight by a judge or other neutral decisionmaker with no
   57  established standard of proof, such as reasonable suspicion or
   58  probable cause, which has led to the erroneous placement of
   59  immigration detainers on lawful citizens, and
   60         WHEREAS, according to ICE’s records, between fiscal year
   61  2008 and fiscal year 2012, more than 800 detainers were issued
   62  for citizens and nondeportable immigrants, and
   63         WHEREAS, the federal 287(g) program can result in a person
   64  being held and transferred for detention without regard to the
   65  circumstances of the arrest, including whether the arrest was
   66  made mistakenly or as part of an investigation without pressing
   67  charges, and
   68         WHEREAS, detention denies lawful status to victims or
   69  witnesses to crimes who may otherwise be eligible for lawful
   70  status through U visas or T visas, and
   71         WHEREAS, the Legislature commends the 29 counties and local
   72  law enforcement agencies in the state that currently have
   73  written policies to limit detention ordered by ICE detainers
   74  without a showing of probable cause, and
   75         WHEREAS, state law does not authorize local law enforcement
   76  agencies to arrest or detain individuals for federal immigration
   77  purposes, and
   78         WHEREAS, state and local law enforcement involvement in
   79  federal immigration enforcement raises constitutional concerns
   80  regarding the Equal Protection Clause and the Fourth Amendment,
   81  and
   82         WHEREAS, federal courts have repeatedly held that detention
   83  by a local law enforcement agency at the request of ICE of an
   84  individual suspected of immigration violations violates the
   85  Fourth Amendment to the United States Constitution and governing
   86  federal law, and
   87         WHEREAS, it is the intent of the Legislature that this act
   88  shall not be construed as providing, expanding, or ratifying the
   89  legal authority for any state or local law enforcement agency to
   90  arrest or detain an individual for immigration purposes, NOW,
   91  THEREFORE,
   92  
   93  Be It Enacted by the Legislature of the State of Florida:
   94  
   95         Section 1. Chapter 908, Florida Statutes, consisting of
   96  sections 908.101 through 908.109, is created to read:
   97                             CHAPTER 908                           
   98                   FEDERAL IMMIGRATION ENFORCEMENT                 
   99         908.101Short title.—This chapter may be cited as the
  100  “Florida Trust Act.”
  101         908.102Legislative intent.—It is the intent of the
  102  Legislature to protect the safety and constitutional rights of
  103  residents of the state and to direct the state’s limited
  104  resources to matters of greatest concern to state and local
  105  governments.
  106         908.103Definitions.—As used in this chapter, the term:
  107         (1)“Civil immigration warrant” means a warrant for a
  108  violation of federal immigration law and includes a warrant
  109  entered in the Immigration Violator File of the National Crime
  110  Information Center database.
  111         (2)“Immigration authority” means an officer, employee, or
  112  person employed by or acting as an agent of the United States
  113  Immigration and Customs Enforcement, or a division thereof, or
  114  an officer, employee, or person employed by or acting as an
  115  agent of the United States Department of Homeland Security who
  116  is charged with immigration enforcement under 8 U.S.C. s. 1357
  117  of the Immigration and Nationality Act.
  118         (3)“Immigration enforcement” means an investigation or
  119  enforcement, or assistance in the investigation or enforcement,
  120  of any federal immigration law, including such laws that
  121  penalize a person’s presence in, entry or reentry to, or
  122  employment in the United States, including, but not limited to,
  123  a violation of 8 U.S.C. s. 1253, s. 1324(c), s. 1325, or s.
  124  1326.
  125         (4)“Immigration hold,” “hold request,” “notification
  126  request,” or “transfer request” mean an immigration detainer
  127  request issued by an immigration authority, pursuant to 8 C.F.R.
  128  s. 287.7, to a local or state law enforcement agency to
  129  facilitate the arrest or transfer of an individual to federal
  130  immigration custody; maintain custody of an individual for a
  131  period not to exceed 48 hours, excluding Saturdays, Sundays, and
  132  holidays; and advise the immigration authority before the
  133  release of such individual.
  134         (5)“Immigration status” or “immigration status
  135  information” means the lawful or unlawful status of an
  136  individual under federal laws and regulations.
  137         (6)“Judicial warrant” means a warrant based on probable
  138  cause which authorizes an immigration authority to take into
  139  custody the person who is the subject of such warrant. Such
  140  warrant must be issued by a judge appointed pursuant to Article
  141  III of the United States Constitution or a federal magistrate
  142  judge appointed pursuant to 28 U.S.C. s. 631.
  143         (7)“Law enforcement officer” means a person who is
  144  elected, appointed, or employed full time by a municipality, the
  145  state, or a political subdivision thereof who is authorized to
  146  make arrests and whose primary responsibility is the prevention
  147  and detection of crime or the enforcement of state penal,
  148  criminal, traffic, or highway laws. The term includes all
  149  certified supervisory and command personnel whose duties
  150  include, in whole or in part, the supervision, training,
  151  guidance, and management responsibilities of a full-time law
  152  enforcement officer, part-time law enforcement officer,
  153  auxiliary law enforcement officer, or support personnel employed
  154  by an employing agency.
  155         (8)“School law enforcement officer” means a person who is
  156  a law enforcement officer under chapter 943 and is employed by a
  157  law enforcement agency or district school board. If the officer
  158  is employed by a district school board, the district school
  159  board is the employing agency for purposes of chapter 943 and
  160  must comply with the provisions of that chapter.
  161         908.104State and local law enforcement agencies, school
  162  law enforcement officers, and security agencies.—
  163         (1)A state or local law enforcement agency, school law
  164  enforcement officer, or security agency may not use agency
  165  resources or personnel to investigate, arrest, or detain a
  166  person for purposes of immigration enforcement. Such resources
  167  include, but are not limited to, labor and resources expended
  168  in:
  169         (a)Responding to a hold request, notification request, or
  170  transfer request from an immigration authority.
  171         (b)Responding to a request from an immigration authority
  172  for information not publicly available regarding a person’s
  173  release date, home address, or work address for purposes of
  174  immigration enforcement.
  175         (c)Making an arrest based on a civil immigration warrant.
  176         (d)Performing functions of an immigration officer pursuant
  177  to 8 U.S.C. s. 1357(g) or any other law, regulation, or policy,
  178  whether formal or informal.
  179         (2)A state or local law enforcement agency, school law
  180  enforcement officer, security agency, or other state agency may
  181  not make an agency database available for purposes of
  182  immigration enforcement or for purposes of an investigation or
  183  enforcement related to a federal program requiring registration
  184  of an individual on the basis of race, gender, disability,
  185  sexual orientation, gender identity, religion, immigration
  186  status, or national or ethnic origin. Any agreement to make
  187  available a database in conflict with this subsection which is
  188  in existence on July 1, 2018, is invalid.
  189         (3)This section does not prevent a state or local law
  190  enforcement agency from responding to a court order issued by an
  191  immigration authority for information about a person’s previous
  192  criminal arrests or convictions.
  193         (4)This section may not be construed to confer any
  194  authority beyond that which existed before the enactment of this
  195  section on a state or local law enforcement agency, school law
  196  enforcement officer, or security agency to detain a person based
  197  on a civil immigration warrant.
  198         (5)This section supersedes any conflicting policy, rule,
  199  procedure, or practice within the state. This section may not be
  200  construed to prohibit a state or local law enforcement agency,
  201  school law enforcement officer, or security agency from
  202  cooperating with an immigration authority to the extent required
  203  by federal law. This section may not be interpreted or applied
  204  so as to create any power, duty, or obligation in conflict with
  205  any federal law.
  206         908.105Confidentiality policies.—A state or local law
  207  enforcement agency shall review its confidentiality policies and
  208  make any necessary revisions to ensure that information
  209  collected by such agency from an individual is limited and may
  210  not be used or disclosed beyond the specifically authorized
  211  purpose for which it was collected.
  212         908.106Access to immigration status information.—
  213         (1)A state or local law enforcement agency, or agent
  214  thereof, or health care provider may not make any inquiry or
  215  record information concerning the immigration status of a person
  216  who:
  217         (a)Is seeking assistance, services, or benefits for
  218  himself or herself, a family or household member, or any other
  219  potential beneficiary of such assistance, services, or benefits.
  220         (b)Contacts, approaches, or requests, or is in need of
  221  assistance from a law enforcement agency.
  222         (2)A limited inquiry and recording of information
  223  concerning the relevant person may be made when, as documented
  224  with specificity in such agency’s, employee’s, agent’s, or
  225  health care provider’s case record of the matter, such person’s
  226  immigration status is:
  227         (a)Directly relevant as a lawful criterion for such
  228  person’s eligibility for the specific method of assistance,
  229  services, or benefits sought by the person;
  230         (b)Directly relevant to the subject matter of a specific,
  231  ongoing state or local law enforcement investigation;
  232         (c)Specifically required by such agency, or agent thereof,
  233  or health care provider by state or federal law;
  234         (d)Requested by a health care provider for the person’s
  235  benefit, including, but not limited to, the referral of such
  236  person to benefits and services he or she may be eligible for,
  237  except that the immigration status of such person may not be
  238  documented in any medical record and may not be disclosed for
  239  any purpose; or
  240         (e)Requested for the person’s benefit by a specific agency
  241  that is tasked with assisting such person in matters related to
  242  such person’s immigration status, except that the status of such
  243  person may not be disclosed for any purpose.
  244         908.107Entitlement to representation for removal
  245  proceedings.—A person against whom there is probable cause to
  246  commence a removal proceeding or against whom such a proceeding
  247  has been commenced who is unable to afford legal counsel is
  248  entitled to representation and related assistance by assigned
  249  counsel, when the person resided or was detained in the state
  250  and was present in the state when questioned, taken into
  251  custody, charged, summoned, or presented with allegations of the
  252  removal proceedings.
  253         908.108Accessibility of public schools, hospitals, and
  254  courthouses.—
  255         (1)The Attorney General shall develop and provide, through
  256  the Department of Legal Affairs’ website, model policies for K
  257  12 public schools and public postsecondary educational
  258  institutions, hospitals, and courthouses to ensure safety and
  259  accessibility in these locations to all residents of the state,
  260  regardless of immigration status.
  261         (2)K-12 public schools and public postsecondary
  262  educational institutions, hospitals, and courthouses shall
  263  develop and make public policies that limit assistance with
  264  immigration enforcement on their premises to the fullest extent
  265  possible consistent with federal and state law.
  266         908.109Violations.—
  267         (1)The Attorney General shall prescribe and provide
  268  through the Department of Legal Affairs’ website the format for
  269  a person to submit a complaint alleging a violation of this
  270  chapter. This section does not prohibit filing an anonymous
  271  complaint or submitting a complaint in another format.
  272         (2)The Attorney General or a state attorney may institute
  273  proceedings in circuit court to enjoin a state entity, state
  274  official, law enforcement agency, local governmental entity,
  275  local government official, school law enforcement officer, or
  276  security agency found to be in violation of this chapter.
  277         Section 2. The provisions of this act are severable. If any
  278  provision of this act or its application is held invalid, that
  279  invalidity shall not affect other provisions or applications
  280  that can be given effect without the invalid provision or
  281  application.
  282         Section 3. This act shall take effect July 1, 2018.