Florida Senate - 2018 SB 308 By Senator Bean 4-00355-18 2018308__ 1 A bill to be entitled 2 An act relating to federal immigration enforcement; 3 providing a short title; creating ch. 908, F.S., 4 relating to federal immigration enforcement; providing 5 legislative findings and intent; providing 6 definitions; prohibiting sanctuary policies; requiring 7 state entities, local governmental entities, and law 8 enforcement agencies to comply with and support the 9 enforcement of federal immigration law; prohibiting 10 restrictions by such entities and agencies on taking 11 certain actions with respect to information regarding 12 a person’s immigration status; providing requirements 13 concerning certain criminal defendants subject to 14 immigration detainers or otherwise subject to transfer 15 to federal custody; authorizing a law enforcement 16 agency to transport an unauthorized alien under 17 certain circumstances; providing an exception to 18 reporting requirements for crime victims or witnesses; 19 requiring recordkeeping relating to crime victim and 20 witness cooperation in certain investigations; 21 specifying duties concerning certain arrested persons; 22 specifying duties concerning immigration detainers; 23 authorizing a board of county commissioners to adopt 24 an ordinance to recover costs for complying with an 25 immigration detainer; authorizing local governmental 26 entities and law enforcement agencies to petition the 27 Federal Government for reimbursement of certain costs; 28 requiring report of violations; providing penalties 29 for failure to report a violation; providing whistle 30 blower protections for persons who report violations; 31 requiring the Attorney General to prescribe the format 32 for submitting complaints; providing requirements for 33 entities to comply with document requests from state 34 attorneys concerning violations; providing for 35 investigation of possible violations; providing for 36 injunctive relief and civil penalties; requiring 37 written findings; prohibiting the expenditure of 38 public funds for specified purposes; providing a cause 39 of action for personal injury or wrongful death 40 attributed to a sanctuary policy; providing that a 41 trial by jury is a matter of right; requiring written 42 findings; requiring a court to provide a copy of the 43 final judgment to the Governor within 30 days after 44 rendition; providing for suspension or removal from 45 office of a sanctuary policymaker; providing for 46 ineligibility for funding from nonfederal grant 47 programs for a specified duration; providing for 48 applicability to certain education records; 49 prohibiting discrimination on specified grounds; 50 requiring repeal of existing sanctuary policies within 51 a specified period; providing effective dates. 52 53 Be It Enacted by the Legislature of the State of Florida: 54 55 Section 1. Short title.—This act may be cited as the “Rule 56 of Law Adherence Act.” 57 Section 2. Chapter 908, Florida Statutes, consisting of 58 sections 908.101-908.402, is created to read: 59 CHAPTER 908 60 FEDERAL IMMIGRATION ENFORCEMENT 61 PART I 62 FINDINGS AND DEFINITIONS 63 908.101 Legislative findings and intent.—The Legislature 64 finds that it is an important state interest that state 65 entities, local governmental entities, and their officials owe 66 an affirmative duty to all citizens and other persons lawfully 67 present in the United States to assist the Federal Government 68 with enforcement of federal immigration laws within this state, 69 including complying with federal immigration detainers. The 70 Legislature further finds that it is an important state interest 71 that, in the interest of public safety and adherence to federal 72 law, this state support federal immigration enforcement efforts 73 and ensure that such efforts are not impeded or thwarted by 74 state or local laws, policies, practices, procedures, or 75 customs. State entities, local governmental entities, and their 76 officials who encourage persons unlawfully present in the United 77 States to locate within this state or who shield such persons 78 from personal responsibility for their unlawful actions breach 79 this duty and should be held accountable. 80 908.102 Definitions.—As used in this chapter, the term: 81 (1) “Federal immigration agency” means the United States 82 Department of Justice, the United States Department of Homeland 83 Security, or any successor agency and any division of such 84 agency, including United States Immigration and Customs 85 Enforcement, United States Customs and Border Protection, or any 86 other federal agency charged with the enforcement of immigration 87 law. The term includes an official or employee of such agency. 88 (2) “Immigration detainer” means a facially sufficient 89 written or electronic request issued by a federal immigration 90 agency using that agency’s official form to request that another 91 law enforcement agency detain a person based on probable cause 92 to believe that the person to be detained is a removable alien 93 under federal immigration law, including detainers issued 94 pursuant to 8 U.S.C. ss. 1226 and 1357. For purposes of this 95 subsection, an immigration detainer is deemed facially 96 sufficient if: 97 (a) The federal immigration agency’s official form is 98 complete and indicates on its face that the federal immigration 99 official has probable cause to believe that the person to be 100 detained is a removable alien under federal immigration law; or 101 (b) The federal immigration agency’s official form is 102 incomplete and fails to indicate on its face that the federal 103 immigration official has probable cause to believe that the 104 person to be detained is a removable alien under federal 105 immigration law, but the form is supported by an affidavit, 106 order, or other official documentation that indicates that the 107 federal immigration agency has probable cause to believe that 108 the person to be detained is a removable alien under federal 109 immigration law. 110 (3) “Inmate” means a person in the custody of a law 111 enforcement agency. 112 (4) “Law enforcement agency” means an agency in this state 113 charged with enforcement of state, county, municipal, or federal 114 laws or with managing custody of detained persons in the state 115 and includes municipal police departments, sheriff’s offices, 116 state police departments, state university and college police 117 departments, and the Department of Corrections. The term 118 includes an official or employee of such agency. 119 (5) “Local governmental entity” means any county, 120 municipality, or other political subdivision of this state. The 121 term includes a person holding public office or having official 122 duties as a representative, agent, or employee of such entity. 123 (6) “Sanctuary policy” means a law, policy, practice, 124 procedure, or custom adopted or authorized by a state entity, 125 local governmental entity, or law enforcement agency which 126 contravenes 8 U.S.C. s. 1373(a) or (b), or which knowingly 127 prohibits or impedes a law enforcement agency from communicating 128 or cooperating with a federal immigration agency with respect to 129 federal immigration enforcement, including, but not limited to, 130 limiting or preventing a state entity, local governmental 131 entity, or law enforcement agency from: 132 (a) Complying with an immigration detainer; 133 (b) Complying with a request from a federal immigration 134 agency to notify the agency before the release of an inmate or 135 detainee in the custody of the state entity, local governmental 136 entity, or law enforcement agency; 137 (c) Providing a federal immigration agency access to an 138 inmate for interview; 139 (d) Initiating an immigration status investigation; or 140 (e) Providing a federal immigration agency with an inmate’s 141 incarceration status or release date. 142 (7) “Sanctuary policymaker” means a state or local elected 143 official, or an appointed official of a local governmental 144 entity governing body, who has voted for, allowed to be 145 implemented, or voted against repeal or prohibition of a 146 sanctuary policy. 147 (8) “State entity” means the state or any office, board, 148 bureau, commission, department, branch, division, or institution 149 thereof, including institutions within the State University 150 System and the Florida College System. The term includes a 151 person holding public office or having official duties as a 152 representative, agent, or employee of such entity. 153 PART II 154 DUTIES 155 908.201 Sanctuary policies prohibited.—A state entity, law 156 enforcement agency, or local governmental entity may not adopt 157 or have in effect a sanctuary policy. 158 908.202 Cooperation with federal immigration authorities.— 159 (1) A state entity, local governmental entity, or law 160 enforcement agency shall fully comply with and, to the fullest 161 extent authorized by law, support the enforcement of federal 162 immigration law. This subsection is only applicable to an 163 official, representative, agent, or employee of such entity or 164 agency when he or she is acting within the scope of his or her 165 official duties or within the scope of his or her employment. 166 (2) Except as otherwise expressly prohibited by federal 167 law, a state entity, local governmental entity, or law 168 enforcement agency may not prohibit or in any way restrict 169 another state entity, local governmental entity, or law 170 enforcement agency from taking any of the following actions with 171 respect to information regarding a person’s immigration status: 172 (a) Sending such information to or requesting, receiving, 173 or reviewing such information from a federal immigration agency 174 for purposes of this chapter. 175 (b) Recording and maintaining such information for purposes 176 of this chapter. 177 (c) Exchanging such information with a federal immigration 178 agency or another state entity, local governmental entity, or 179 law enforcement agency for purposes of this chapter. 180 (d) Using such information to determine eligibility for a 181 public benefit, service, or license pursuant to federal or state 182 law or an ordinance or regulation of a local governmental 183 entity. 184 (e) Using such information to verify a claim of residence 185 or domicile if a determination of residence or domicile is 186 required under federal or state law, an ordinance or regulation 187 of a local governmental entity, or a judicial order issued 188 pursuant to a civil or criminal proceeding in this state. 189 (f) Using such information to comply with an immigration 190 detainer. 191 (g) Using such information to confirm the identity of a 192 person who is detained by a law enforcement agency. 193 (3)(a) This subsection only applies in a criminal case in 194 which: 195 1. The judgment requires the defendant to be confined in a 196 secure correctional facility; and 197 2. The judge: 198 a. Indicates in the record under s. 908.204 that the 199 defendant is subject to an immigration detainer; or 200 b. Otherwise indicates in the record that the defendant is 201 subject to a transfer to federal custody. 202 (b) In a criminal case described by paragraph (a), the 203 judge shall, at the time of pronouncement of a sentence of 204 confinement, issue an order requiring the secure correctional 205 facility in which the defendant is to be confined to reduce the 206 defendant’s sentence by a period of not more than 7 days on the 207 facility’s determination that the reduction in sentence will 208 facilitate the seamless transfer of the defendant into federal 209 custody. For purposes of this paragraph, the term “secure 210 correctional facility” means a state correctional institution, 211 as defined in s. 944.02, or a county detention facility or a 212 municipal detention facility, as defined in s. 951.23. 213 (c) If the applicable information described by subparagraph 214 (a)2. is not available at the time the sentence is pronounced in 215 the case, the judge shall issue the order described by paragraph 216 (b) as soon as the information becomes available. 217 (4) Notwithstanding any other provision of law, if a law 218 enforcement agency has received verification from a federal 219 immigration agency that an alien in the law enforcement agency’s 220 custody is unlawfully present in the United States, the law 221 enforcement agency may securely transport such alien to a 222 federal facility in this state or to another point of transfer 223 to federal custody outside the jurisdiction of the law 224 enforcement agency. A law enforcement agency shall obtain 225 judicial authorization before securely transporting such alien 226 to a point of transfer outside of this state. 227 (5) This section does not require a state entity, local 228 governmental entity, or law enforcement agency to provide a 229 federal immigration agency with information related to a victim 230 of or a witness to a criminal offense if such victim or witness 231 timely and in good faith responds to the entity’s or agency’s 232 request for information and cooperation in the investigation or 233 prosecution of such offense. 234 (6) A state entity, local governmental entity, or law 235 enforcement agency that, pursuant to subsection (5), withholds 236 information regarding the immigration information of a victim of 237 or witness to a criminal offense shall document such victim’s or 238 witness’s cooperation in the entity’s or agency’s investigative 239 records related to the offense and shall retain such records for 240 at least 10 years for the purpose of audit, verification, or 241 inspection by the Auditor General. 242 908.203 Duties related to certain arrested persons.— 243 (1) If a person is arrested and is unable to provide proof 244 of his or her lawful presence in the United States, not later 245 than 48 hours after the person is arrested and before the person 246 is released on bond, a law enforcement agency performing the 247 booking process shall: 248 (a) Review any information available from a federal 249 immigration agency. 250 (b) If information obtained under paragraph (a) reveals 251 that the person is not a citizen of the United States and is 252 unlawfully present in the United States according to the terms 253 of the federal Immigration and Nationality Act, 8 U.S.C. ss. 254 1101 et seq., the law enforcement agency shall: 255 1. Provide immediate notice of the person’s arrest and 256 charges to a federal immigration agency. 257 2. Provide notice of that fact to the judge authorized to 258 grant or deny the person’s release on bail under chapter 903. 259 3. Record that fact in the person’s case file. 260 (2) A law enforcement agency is not required to perform a 261 duty imposed by subsection (1) with respect to a person who is 262 transferred to the custody of the agency by another law 263 enforcement agency if the transferring agency performed that 264 duty before transferring custody of the person. 265 (3) A judge who receives notice of a person’s immigration 266 status under this section shall ensure that such status is 267 recorded in the court record. 268 908.204 Duties related to immigration detainers.— 269 (1) A law enforcement agency that has custody of a person 270 subject to an immigration detainer issued by a federal 271 immigration agency shall: 272 (a) Provide to the judge authorized to grant or deny the 273 person’s release on bail under chapter 903 notice that the 274 person is subject to an immigration detainer. 275 (b) Record in the person’s case file that the person is 276 subject to an immigration detainer. 277 (c) Comply with, honor, and fulfill the requests made in 278 the immigration detainer. 279 (2) A law enforcement agency is not required to perform a 280 duty imposed by paragraph (1)(a) or paragraph (1)(b) with 281 respect to a person who is transferred to the custody of the 282 agency by another law enforcement agency if the transferring 283 agency performed that duty before transferring custody of the 284 person. 285 (3) A judge who receives notice that a person is subject to 286 an immigration detainer shall ensure that such fact is recorded 287 in the court record, regardless of whether the notice is 288 received before or after a judgment in the case. 289 908.205 Reimbursement of costs.— 290 (1) A board of county commissioners may adopt an ordinance 291 requiring a person detained pursuant to an immigration detainer 292 to reimburse the county for any expenses incurred in detaining 293 the person pursuant to the immigration detainer. A person 294 detained pursuant to an immigration detainer is not liable under 295 this section if a federal immigration agency determines that the 296 immigration detainer was improperly issued. 297 (2) A local governmental entity or law enforcement agency 298 may petition the Federal Government for reimbursement of the 299 entity’s or agency’s detention costs and the costs of compliance 300 with federal requests when such costs are incurred in support of 301 the enforcement of federal immigration law. 302 908.206 Duty to report.— 303 (1) An official, representative, agent, or employee of a 304 state entity, local governmental entity, or law enforcement 305 agency shall promptly report a known or probable violation of 306 this chapter to the Attorney General or the state attorney 307 having jurisdiction over the entity or agency. 308 (2) An official, representative, agent, or employee of a 309 state entity, local governmental entity, or law enforcement 310 agency who willfully and knowingly fails to report a known or 311 probable violation of this chapter may be suspended or removed 312 from office pursuant to general law and s. 7, Art. IV of the 313 State Constitution. 314 (3) A state entity, local governmental entity, or law 315 enforcement agency may not dismiss, discipline, take any adverse 316 personnel action as defined in s. 112.3187(3) against, or take 317 any adverse action described in s. 112.3187(4)(b) against, an 318 official, representative, agent, or employee for complying with 319 subsection (1). 320 (4) Section 112.3187 of the Whistle-blower’s Act applies to 321 an official, representative, agent, or employee of a state 322 entity, local governmental entity, or law enforcement agency who 323 is dismissed, disciplined, subjected to any adverse personnel 324 action as defined in s. 112.3187(3) or any adverse action 325 described in s. 112.3187(4)(b), or denied employment because he 326 or she complied with subsection (1). 327 908.207 Implementation.—This chapter shall be implemented 328 to the fullest extent authorized by federal law regulating 329 immigration and the legislative findings and intent declared in 330 s. 908.101. 331 PART III 332 ENFORCEMENT 333 908.301 Complaints.—The Attorney General shall prescribe 334 and provide through the Department of Legal Affairs’ website the 335 format for a person to submit a complaint alleging a violation 336 of this chapter. This section does not prohibit the filing of an 337 anonymous complaint or a complaint not submitted in the 338 prescribed format. Any person has standing to submit a complaint 339 under this chapter. 340 908.302 Enforcement; penalties.— 341 (1) The state attorney for the county in which a state 342 entity is headquartered or in which a local governmental entity 343 or law enforcement agency is located has primary responsibility 344 and authority for investigating credible complaints of a 345 violation of this chapter. The results of an investigation by a 346 state attorney shall be provided to the Attorney General in a 347 timely manner. 348 (2)(a) A state entity, local governmental entity, or law 349 enforcement agency for which the state attorney has received a 350 complaint shall comply with a document request from the state 351 attorney related to the complaint. 352 (b) If the state attorney determines that a complaint filed 353 against a state entity, local governmental entity, or law 354 enforcement agency is valid, the state attorney shall, not later 355 than the 10th day after the date of the determination, provide 356 written notification to the entity that: 357 1. The complaint has been filed. 358 2. The state attorney has determined that the complaint is 359 valid. 360 3. The state attorney is authorized to file an action to 361 enjoin the violation if the entity does not come into compliance 362 with the requirements of this chapter on or before the 60th day 363 after the notification is provided. 364 (c) No later than the 30th day after the day a state entity 365 or local governmental entity receives written notification under 366 paragraph (b), the state entity or local governmental entity 367 shall provide the state attorney with a copy of: 368 1. The entity’s written policies and procedures with 369 respect to federal immigration agency enforcement actions, 370 including the entity’s policies and procedures with respect to 371 immigration detainers. 372 2. Each immigration detainer received by the entity from a 373 federal immigration agency in the current calendar year-to-date 374 and the two prior calendar years. 375 3. Each response sent by the entity for an immigration 376 detainer described by subparagraph 2. 377 (3) The Attorney General, the state attorney who conducted 378 the investigation, or a state attorney ordered by the Governor 379 pursuant to s. 27.14 may institute proceedings in circuit court 380 to enjoin a state entity, local governmental entity, or law 381 enforcement agency found to be in violation of this chapter. The 382 court shall expedite an action under this section, including 383 setting a hearing at the earliest practicable date. 384 (4) Upon adjudication by the court or as provided in a 385 consent decree declaring that a state entity, local governmental 386 entity, or law enforcement agency has violated this chapter, the 387 court shall enjoin the unlawful sanctuary policy and order that 388 such entity or agency pay a civil penalty to the state of at 389 least $1,000 but not more than $5,000 for each day that the 390 sanctuary policy was in effect commencing on October 1, 2018, or 391 the date the sanctuary policy was first enacted, whichever is 392 later, until the date the injunction was granted. The court 393 shall have continuing jurisdiction over the parties and subject 394 matter and may enforce its orders with imposition of additional 395 civil penalties as provided for in this section and contempt 396 proceedings as provided by law. 397 (5) An order approving a consent decree or granting an 398 injunction or civil penalty pursuant to subsection (4) must 399 include written findings of fact that describe with specificity 400 the existence and nature of the sanctuary policy in violation of 401 s. 908.201 and that identify each sanctuary policymaker who 402 voted for, allowed to be implemented, or voted against repeal or 403 prohibition of the sanctuary policy. The court shall provide a 404 copy of the consent decree or order granting an injunction or 405 civil penalty which contains the written findings required by 406 this subsection to the Governor within 30 days after the date of 407 rendition. A sanctuary policymaker identified in an order 408 approving a consent decree or granting an injunction or civil 409 penalty may be suspended or removed from office pursuant to 410 general law and s. 7, Art. IV of the State Constitution. 411 (6) A state entity, local governmental entity, or law 412 enforcement agency ordered to pay a civil penalty pursuant to 413 subsection (4) shall remit payment to the Chief Financial 414 Officer, who shall deposit such payment into the General Revenue 415 Fund. 416 (7) Except as required by law, public funds may not be used 417 to defend or reimburse a sanctuary policymaker or an official, 418 representative, agent, or employee of a state entity, local 419 governmental entity, or law enforcement agency who knowingly and 420 willfully violates this chapter. 421 908.303 Civil cause of action for personal injury or 422 wrongful death attributed to a sanctuary policy; trial by jury; 423 required written findings.— 424 (1) A person injured in this state by the tortious acts or 425 omissions of an alien unlawfully present in the United States, 426 or the personal representative of a person killed in this state 427 by the tortious acts or omissions of an alien unlawfully present 428 in the United States, has a cause of action for damages against 429 a state entity, local governmental entity, or law enforcement 430 agency in violation of ss. 908.201 and 908.202 upon proof by the 431 greater weight of the evidence of: 432 (a) The existence of a sanctuary policy in violation of s. 433 908.201; and 434 (b)1. A failure to comply with a provision of s. 908.202 435 resulting in such alien’s having access to the person injured or 436 killed when the tortious acts or omissions occurred; or 437 2. A failure to comply with a provision of s. 908.204(1)(c) 438 resulting in such alien’s having access to the person injured or 439 killed when the tortious acts or omissions occurred. 440 (2) A cause of action brought pursuant to subsection (1) 441 may not be brought against a person who holds public office or 442 who has official duties as a representative, agent, or employee 443 of a state entity, local governmental entity, or law enforcement 444 agency, including a sanctuary policymaker. 445 (3) Trial by jury is a matter of right in an action brought 446 under this section. 447 (4) A final judgment entered in favor of a plaintiff in a 448 cause of action brought pursuant to this section must include 449 written findings of fact that describe with specificity the 450 existence and nature of the sanctuary policy in violation of s. 451 908.201 and that identify each sanctuary policymaker who voted 452 for, allowed to be implemented, or voted against repeal or 453 prohibition of the sanctuary policy. The court shall provide a 454 copy of the final judgment containing the written findings 455 required by this subsection to the Governor within 30 days after 456 the date of rendition. A sanctuary policymaker identified in a 457 final judgment may be suspended or removed from office pursuant 458 to general law and s. 7, Art. IV of the State Constitution. 459 (5) Except as provided in this section, this chapter does 460 not create a private cause of action against a state entity, 461 local governmental entity, or law enforcement agency that 462 complies with this chapter. 463 908.304 Ineligibility for state grant funding.— 464 (1) Notwithstanding any other provision of law, a state 465 entity, local governmental entity, or law enforcement agency 466 shall be ineligible to receive funding from nonfederal grant 467 programs administered by state agencies that receive funding 468 from the General Appropriations Act for a period of 5 years from 469 the date of adjudication that such state entity, local 470 governmental entity, or law enforcement agency had in effect a 471 sanctuary policy in violation of this chapter. 472 (2) The Chief Financial Officer shall be notified by the 473 state attorney of an adjudicated violation of this chapter by a 474 state entity, local governmental entity, or law enforcement 475 agency and be provided with a copy of the final court 476 injunction, order, or judgment. Upon receiving such notice, the 477 Chief Financial Officer shall timely inform all state agencies 478 that administer nonfederal grant funding of the adjudicated 479 violation by the state entity, local governmental entity, or law 480 enforcement agency and direct such agencies to cancel all 481 pending grant applications and enforce the ineligibility of such 482 entity for the prescribed period. 483 (3) This subsection does not apply to: 484 (a) Funding that is received as a result of an 485 appropriation to a specifically named state entity, local 486 governmental entity, or law enforcement agency in the General 487 Appropriations Act or other law. 488 (b) Grants awarded before the date of adjudication that 489 such state entity, local governmental entity, or law enforcement 490 agency had in effect a sanctuary policy in violation of this 491 chapter. 492 PART IV 493 MISCELLANEOUS 494 908.401 Education records.—This chapter does not apply to 495 the release of information contained in education records of an 496 educational agency or institution, except in conformity with the 497 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. s. 498 1232g. 499 908.402 Discrimination prohibited.—A state entity, a local 500 governmental entity, or a law enforcement agency, or a person 501 employed by or otherwise under the direction or control of such 502 an entity, may not base any actions under this chapter on the 503 gender, race, religion, national origin, or physical disability 504 of a person except to the extent authorized by the United States 505 Constitution or the State Constitution. 506 Section 3. A sanctuary policy, as defined in s. 908.102, 507 Florida Statutes, as created by this act, that is in effect on 508 the effective date of this act must be repealed within 90 days 509 after that date. 510 Section 4. Except for sections 908.302 and 908.303, Florida 511 Statutes, as created by this act, which shall take effect 512 October 1, 2018, this act shall take effect July 1, 2018.