Florida Senate - 2019 COMMITTEE AMENDMENT
Bill No. SB 168
Ì384212tÎ384212
LEGISLATIVE ACTION
Senate . House
.
.
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
The Committee on Judiciary (Rodriguez) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Short title.—This act may be cited as the “Rule
6 of Law Adherence Act.”
7 Section 2. Chapter 908, Florida Statutes, consisting of
8 sections 908.101-908.402, is created to read:
9 CHAPTER 908
10 FEDERAL IMMIGRATION ENFORCEMENT
11 PART I
12 FINDINGS AND INTENT AND DEFINITIONS
13 908.101 Legislative findings and intent.—The Legislature
14 finds that it is an important state interest that state entities
15 and their officials have an affirmative duty to all citizens and
16 other persons lawfully present in the United States to assist
17 the Federal Government in the enforcement of federal immigration
18 laws within this state, including their compliance with federal
19 immigration detainers. The Legislature further finds that it is
20 an important state interest that, in the interest of public
21 safety and adherence to federal law, this state support federal
22 immigration enforcement efforts and ensure that such efforts are
23 not impeded or thwarted by state laws, policies, practices,
24 procedures, or customs. State entities and their officials who
25 encourage persons unlawfully present in the United States to
26 locate within this state or who shield such persons from
27 personal responsibility for their unlawful actions breach this
28 duty and should be held accountable.
29 908.102 Definitions.—As used in this chapter, the term:
30 (1) “Federal immigration agency” means the United States
31 Department of Justice and the United States Department of
32 Homeland Security, a division within such an agency, including
33 United States Immigration and Customs Enforcement and United
34 States Customs and Border Protection, any successor agency, and
35 any other federal agency charged with the enforcement of
36 immigration law. The term includes an official or employee of
37 such an agency.
38 (2) “Immigration detainer” means a facially sufficient
39 written or electronic request issued by a federal immigration
40 agency using that agency’s official form to request that another
41 law enforcement agency detain a person based on probable cause
42 to believe that the person to be detained is a removable alien
43 under federal immigration law, including detainers issued
44 pursuant to 8 U.S.C. ss. 1226 and 1357. For purposes of this
45 subsection, an immigration detainer is deemed facially
46 sufficient if:
47 (a) The federal immigration agency’s official form is
48 complete and indicates on its face that the federal immigration
49 official has probable cause to believe that the person to be
50 detained is a removable alien under federal immigration law; or
51 (b) The federal immigration agency’s official form is
52 incomplete and fails to indicate on its face that the federal
53 immigration official has probable cause to believe that the
54 person to be detained is a removable alien under federal
55 immigration law, but is supported by an affidavit, order, or
56 other official documentation that indicates that the federal
57 immigration agency has probable cause to believe that the person
58 to be detained is a removable alien under federal immigration
59 law.
60 (3) “Inmate” means a person in the custody of a law
61 enforcement agency.
62 (4) “Law enforcement agency” means an agency in this state
63 charged with enforcement of state or federal laws or with
64 managing custody of detained persons in the state and includes
65 state police departments and the Department of Corrections. The
66 term includes an official or employee of such an agency.
67 (5) “Sanctuary policy” means a law, policy, practice,
68 procedure, or custom adopted or permitted by a state entity or
69 law enforcement agency which contravenes 8 U.S.C. s. 1373(a) or
70 (b) or which knowingly prohibits or impedes a law enforcement
71 agency from communicating or cooperating with a federal
72 immigration agency with respect to federal immigration
73 enforcement, including, but not limited to, limiting a state
74 entity or law enforcement agency in, or prohibiting such an
75 entity or agency from:
76 (a) Complying with an immigration detainer;
77 (b) Complying with a request from a federal immigration
78 agency to notify the agency before the release of an inmate or
79 detainee in the custody of the state entity or law enforcement
80 agency;
81 (c) Providing a federal immigration agency access to an
82 inmate for interview;
83 (d) Initiating an immigration status investigation; or
84 (e) Providing a federal immigration agency with an inmate’s
85 incarceration status or release date.
86 (6) “Sanctuary policymaker” means a state official who has
87 voted for, allowed to be implemented, or voted against repeal or
88 prohibition of a sanctuary policy.
89 (7) “State entity” means the state or any office, board,
90 bureau, commission, department, branch, division, or institution
91 thereof. The term includes a person holding public office or
92 having official duties as a representative, agent, or employee
93 of such entity.
94 PART II
95 DUTIES
96 908.201 Sanctuary policies prohibited.—A state entity or
97 law enforcement agency may not adopt or have in effect a
98 sanctuary policy.
99 908.202 Cooperation with federal immigration authorities.—
100 (1) A state entity or law enforcement agency shall fully
101 comply with and, to the full extent permitted by law, support
102 the enforcement of federal immigration law. This subsection
103 applies to an official, representative, agent, or employee of
104 such entity or agency only when he or she is acting within the
105 scope of his or her official duties or within the scope of his
106 or her employment.
107 (2) Except as otherwise expressly prohibited by federal
108 law, a state entity or law enforcement agency may not prohibit
109 or in any way restrict another state entity or law enforcement
110 agency from taking any of the following actions with respect to
111 information regarding a person’s immigration status:
112 (a) Sending such information to or requesting, receiving,
113 or reviewing such information from a federal immigration agency
114 for purposes of this chapter.
115 (b) Recording and maintaining such information for purposes
116 of this chapter.
117 (c) Exchanging such information with a federal immigration
118 agency or another state entity or law enforcement agency for
119 purposes of this chapter.
120 (d) Using such information to determine eligibility for a
121 public benefit, service, or license pursuant to federal or state
122 law.
123 (e) Using such information to verify a claim of residence
124 or domicile if a determination of residence or domicile is
125 required under federal or state law or a judicial order issued
126 pursuant to a civil or criminal proceeding in this state.
127 (f) Using such information to comply with an immigration
128 detainer.
129 (g) Using such information to confirm the identity of a
130 person who is detained by a law enforcement agency.
131 (3)(a) For purposes of this subsection the term “applicable
132 criminal case” means a criminal case in which:
133 1. The judgment requires the defendant to be confined in a
134 secure correctional facility; and
135 2. The judge:
136 a. Indicates in the record under s. 908.204 that the
137 defendant is subject to an immigration detainer; or
138 b. Otherwise indicates in the record that the defendant is
139 subject to a transfer into federal custody.
140 (b) In an applicable criminal case, at the time of
141 pronouncement of a sentence of confinement, the judge shall
142 issue an order requiring the secure correctional facility in
143 which the defendant is to be confined to reduce the defendant’s
144 sentence by a period of not more than 7 days on the facility’s
145 determination that the reduction in sentence will facilitate the
146 seamless transfer of the defendant into federal custody. For
147 purposes of this paragraph, the term “secure correctional
148 facility” means a state correctional institution as defined in
149 s. 944.02.
150 (c) If the information specified in sub-subparagraph
151 (a)2.a. or sub-subparagraph (a)2.b. is not available at the time
152 the sentence is pronounced in the case, the judge shall issue
153 the order described by paragraph (b) as soon as the information
154 becomes available.
155 (4) Notwithstanding any other provision of law, if a law
156 enforcement agency has received verification from a federal
157 immigration agency that an alien in the law enforcement agency’s
158 custody is unlawfully present in the United States, the law
159 enforcement agency may securely transport such alien to a
160 federal facility in this state or to another point of transfer
161 to federal custody outside the jurisdiction of the law
162 enforcement agency. A law enforcement agency shall obtain
163 judicial authorization before securely transporting such alien
164 to a point of transfer outside of this state.
165 (5) This section does not require a state entity or law
166 enforcement agency to provide a federal immigration agency with
167 information related to a victim of or a witness to a criminal
168 offense if such victim or witness timely and in good faith
169 responds to the entity’s or agency’s request for information and
170 cooperation in the investigation or prosecution of such offense.
171 (6) A state entity or law enforcement agency that, pursuant
172 to subsection (5), withholds information regarding the
173 immigration information of a victim of or witness to a criminal
174 offense shall document such victim’s or witness’s cooperation in
175 the entity’s or agency’s investigative records related to the
176 offense and shall retain such records for at least 10 years for
177 the purpose of audit, verification, or inspection by the Auditor
178 General.
179 908.203 Duties related to certain arrested persons.—
180 (1) If a person is arrested and is unable to provide proof
181 of his or her lawful presence in the United States, not later
182 than 48 hours after the person is arrested, and before the
183 person is released on bond, a law enforcement agency performing
184 the booking process:
185 (a) Shall review any information available from a federal
186 immigration agency.
187 (b) If information obtained under paragraph (a) reveals
188 that the person is not a citizen of the United States and is
189 unlawfully present in the United States according to the terms
190 of the federal Immigration and Nationality Act, 8 U.S.C. ss.
191 1101 et seq., must:
192 1. Provide immediate notice of the person’s arrest and
193 charges to a federal immigration agency.
194 2. Provide notice of that fact to the judge authorized to
195 grant or deny the person’s release on bail under chapter 903.
196 3. Record the person’s arrest and charges in the person’s
197 case file.
198 (2) A law enforcement agency is not required to perform the
199 duty imposed by subsection (1) with respect to a person who is
200 transferred to the custody of the agency by another law
201 enforcement agency if the transferring agency performed that
202 duty before the transfer.
203 (3) A judge who receives notice of a person’s immigration
204 status under this section shall ensure that such status is
205 recorded in the court record.
206 908.204 Duties related to immigration detainers.—
207 (1) A law enforcement agency that has custody of a person
208 subject to an immigration detainer issued by a federal
209 immigration agency shall:
210 (a) Provide to the judge authorized to grant or deny the
211 person’s release on bail under chapter 903 notice that the
212 person is subject to an immigration detainer.
213 (b) Record in the person’s case file that the person is
214 subject to an immigration detainer.
215 (c) Comply with, honor, and fulfill the requests made in
216 the immigration detainer.
217 (2) A law enforcement agency is not required to perform a
218 duty imposed by paragraph (1)(a) or paragraph (1)(b) with
219 respect to a person who is transferred to the custody of the
220 agency by another law enforcement agency if the transferring
221 agency performed that duty before the transfer.
222 (3) A judge who receives notice that a person is subject to
223 an immigration detainer shall ensure that such fact is recorded
224 in the court record, regardless of whether the notice is
225 received before or after a judgment in the case.
226 908.205 Reimbursement of costs.—A state entity or law
227 enforcement agency may petition the Federal Government for
228 reimbursement of the entity’s or agency’s detention costs and
229 the costs of compliance with federal requests when such costs
230 are incurred in support of the enforcement of federal
231 immigration law.
232 908.206 Duty to report.—
233 (1) An official, representative, agent, or employee of a
234 state entity or law enforcement agency shall promptly report a
235 known or probable violation of this chapter to the Attorney
236 General or the state attorney having jurisdiction over the
237 entity or agency.
238 (2) An official, representative, agent, or employee of a
239 state entity or law enforcement agency who willfully and
240 knowingly fails to report a known or probable violation of this
241 chapter may be suspended or removed from office pursuant to
242 general law and s. 7, Art. IV of the State Constitution.
243 (3) A state entity or law enforcement agency may not
244 dismiss, discipline, take any adverse personnel action as
245 defined in s. 112.3187(3) against, or take any adverse action
246 described in s. 112.3187(4)(b) against, an official,
247 representative, agent, or employee for complying with subsection
248 (1).
249 (4) Section 112.3187 of the Whistle-blower’s Act applies to
250 an official, representative, agent, or employee of a state
251 entity or law enforcement agency who is dismissed, disciplined,
252 subject to any adverse personnel action as defined in s.
253 112.3187(3) or any adverse action described in s.
254 112.3187(4)(b), or denied employment because he or she complied
255 with subsection (1).
256 908.207 Implementation.—This chapter shall be implemented
257 to the fullest extent permitted by federal law regulating
258 immigration and the legislative findings and intent declared in
259 s. 908.101.
260 PART III
261 ENFORCEMENT
262 908.301 Complaints.—The Attorney General shall prescribe
263 and provide through the Department of Legal Affairs’ website the
264 format for a person to submit a complaint alleging a violation
265 of this chapter. This section does not prohibit the filing of an
266 anonymous complaint or a complaint not submitted in the
267 prescribed format. Any person has standing to submit a complaint
268 under this chapter.
269 908.302 Enforcement; penalties.—
270 (1) The state attorney for the county in which a state
271 entity is headquartered or a law enforcement agency is located
272 has primary responsibility and authority for investigating
273 credible complaints of a violation of this chapter. The results
274 of an investigation by a state attorney shall be provided to the
275 Attorney General in a timely manner.
276 (2)(a) A state entity or law enforcement agency about which
277 the state attorney has received a complaint shall comply with a
278 document request from the state attorney related to the
279 complaint.
280 (b) If the state attorney determines that a complaint filed
281 against a state entity or law enforcement agency is valid, the
282 state attorney shall, not later than the 10th day after the date
283 of the determination, provide written notification to the entity
284 or agency that:
285 1. The complaint has been filed.
286 2. The state attorney has determined that the complaint is
287 valid.
288 3. The state attorney is authorized to file an action to
289 enjoin the violation if the entity or agency does not come into
290 compliance with the requirements of this chapter on or before
291 the 60th day after the notification is provided.
292 (c) Not later than the 30th day after the day a state
293 entity or law enforcement agency receives written notification
294 under paragraph (b), the entity or the agency shall provide the
295 state attorney with a copy of:
296 1. The entity’s or agency’s written policies and procedures
297 with respect to federal immigration agency enforcement actions,
298 including the entity’s or agency’s policies and procedures with
299 respect to immigration detainers.
300 2. Each immigration detainer received by the entity or
301 agency from a federal immigration agency in the current calendar
302 year-to-date and the 2 prior calendar years.
303 3. Each response sent by the entity or agency for an
304 immigration detainer described by subparagraph 2.
305 (3) The Attorney General, the state attorney who conducted
306 the investigation, or a state attorney so ordered by the
307 Governor pursuant to s. 27.14 may institute proceedings in
308 circuit court to enjoin a state entity or law enforcement agency
309 found to be in violation of this chapter. Venue of an action
310 brought by the Attorney General may be in Leon County. The court
311 shall expedite an action under this section, including setting a
312 hearing at the earliest practicable date.
313 (4) Upon adjudication by the court or as provided in a
314 consent decree declaring that a state entity or law enforcement
315 agency has violated this chapter, the court shall enjoin the
316 unlawful sanctuary policy and order that such entity or agency
317 pay a civil penalty to the state of at least $1,000 but not more
318 than $5,000 for each day that the sanctuary policy was in effect
319 commencing on October 1, 2019, or the date the sanctuary policy
320 was first enacted, whichever is later, until the date the
321 injunction was granted. The court has continuing jurisdiction
322 over the parties and subject matter and may enforce its orders
323 with the imposition of additional civil penalties as provided
324 for in this section and the initiation of contempt proceedings
325 as provided by law.
326 (5) An order approving a consent decree or granting an
327 injunction or imposing civil penalties pursuant to subsection
328 (4) must include written findings of fact that describe with
329 specificity the existence and nature of the sanctuary policy
330 that is in violation of s. 908.201 and identify each sanctuary
331 policymaker who voted for, allowed to be implemented, or voted
332 against repeal or prohibition of the sanctuary policy. The court
333 shall provide to the Governor a copy of the consent decree or
334 order granting an injunction or imposing civil penalties which
335 contains the written findings required by this subsection within
336 30 days after the date of rendition. A sanctuary policymaker
337 identified in an order approving a consent decree or granting an
338 injunction or imposing civil penalties may be suspended or
339 removed from office pursuant to general law and s. 7, Art. IV of
340 the State Constitution.
341 (6) A state entity or law enforcement agency ordered to pay
342 a civil penalty pursuant to subsection (4) shall remit such
343 payment to the Chief Financial Officer, who shall deposit it
344 into the General Revenue Fund.
345 (7) Except as required by law, public funds may not be used
346 to defend or reimburse a sanctuary policymaker or an official,
347 representative, agent, or employee of a state entity or law
348 enforcement agency who knowingly and willfully violates this
349 chapter.
350 908.303 Civil cause of action for personal injury or
351 wrongful death attributed to a sanctuary policy; trial by jury;
352 required written findings.—
353 (1) A person injured in this state by the tortious acts or
354 omissions of an alien unlawfully present in the United States,
355 or the personal representative of a person killed in this state
356 by the tortious acts or omissions of an alien unlawfully present
357 in the United States, has a cause of action for damages against
358 a state entity or law enforcement agency in violation of ss.
359 908.201 and 908.202 upon proof by the greater weight of the
360 evidence of:
361 (a) The existence of a sanctuary policy in violation of s.
362 908.201; and
363 (b)1. A failure to comply with s. 908.202 which results in
364 such alien’s having access to the person injured or killed when
365 the tortious acts or omissions occurred; or
366 2. A failure to comply with s. 908.204(1)(c) which results
367 in such alien’s having access to the person injured or killed
368 when the tortious acts or omissions occurred.
369 (2) A cause of action brought pursuant to subsection (1)
370 may not be brought against a person who holds public office or
371 who has official duties as a representative, agent, or employee
372 of a state entity or law enforcement agency, including a
373 sanctuary policymaker.
374 (3) Trial by jury is a matter of right in an action brought
375 under this section.
376 (4) A final judgment entered in favor of a plaintiff in a
377 cause of action brought pursuant to this section must include
378 written findings of fact that describe with specificity the
379 existence and nature of the sanctuary policy that is in
380 violation of s. 908.201 and that identify each sanctuary
381 policymaker who voted for, allowed to be implemented, or voted
382 against repeal or prohibition of the sanctuary policy. The court
383 shall provide a copy of the final judgment containing the
384 written findings required by this subsection to the Governor
385 within 30 days after the date of rendition. A sanctuary
386 policymaker identified in a final judgment may be suspended or
387 removed from office pursuant to general law and s. 7, Art. IV of
388 the State Constitution.
389 (5) Except as provided in this section, this chapter does
390 not create a private cause of action against a state entity or
391 law enforcement agency that complies with this chapter.
392 908.304 Ineligibility for state grant funding.—
393 (1) Notwithstanding any other provision of law, a state
394 entity or law enforcement agency is ineligible to receive
395 funding from nonfederal grant programs administered by state
396 agencies that receive funding from the General Appropriations
397 Act for a period of 5 years after the date of adjudication that
398 such state entity or law enforcement agency had in effect a
399 sanctuary policy in violation of this chapter.
400 (2) The applicable state attorney shall notify the Chief
401 Financial Officer of an adjudicated violation of this chapter by
402 a state entity or law enforcement agency and shall provide him
403 or her a copy of the final court injunction, order, or judgment.
404 Upon receiving such notice, the Chief Financial Officer shall
405 timely inform all state agencies that administer nonfederal
406 grant funding of the adjudicated violation by the state entity
407 or law enforcement agency and direct such agencies to cancel all
408 pending grant applications and enforce the ineligibility of such
409 entity for the prescribed period.
410 (3) This subsection does not apply to:
411 (a) Funding that is received as a result of an
412 appropriation to a specifically named state entity or law
413 enforcement agency in the General Appropriations Act or other
414 law.
415 (b) Grants awarded prior to the date of adjudication that
416 such state entity or law enforcement agency had in effect a
417 sanctuary policy in violation of this chapter.
418 PART IV
419 MISCELLANEOUS
420 908.401 Education records.—This chapter does not apply to
421 the release of information contained in education records of an
422 educational agency or institution, except in conformity with the
423 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. s.
424 1232g.
425 908.402 Discrimination prohibited.—A state entity or a law
426 enforcement agency, or a person employed by or otherwise under
427 the direction or control of such an entity or agency, may not
428 base its actions under this chapter on the gender, race,
429 religion, national origin, or physical disability of a person
430 except to the extent authorized by the United States
431 Constitution or the State Constitution.
432 Section 3. A sanctuary policy, as defined in s. 908.102,
433 Florida Statutes, as created by this act, that is in effect on
434 the effective date of this act must be repealed within 90 days
435 after that date.
436 Section 4. Sections 908.302 and 908.303, Florida Statutes,
437 as created by this act, shall take effect October 1, 2019, and,
438 except as otherwise expressly provided in this act, this act
439 shall take effect July 1, 2019.
440
441 ================= T I T L E A M E N D M E N T ================
442 And the title is amended as follows:
443 Delete everything before the enacting clause
444 and insert:
445 A bill to be entitled
446 An act relating to federal immigration enforcement;
447 providing a short title; creating chapter 908, F.S.,
448 relating to federal immigration enforcement; providing
449 legislative findings and intent; providing
450 definitions; prohibiting sanctuary policies; requiring
451 state entities and law enforcement agencies to comply
452 with and support the enforcement of federal
453 immigration law; prohibiting restrictions by such
454 entities and agencies on taking certain actions with
455 respect to information regarding a person’s
456 immigration status; providing requirements concerning
457 certain criminal defendants subject to immigration
458 detainers or otherwise subject to transfer to federal
459 custody; authorizing a law enforcement agency to
460 transport an alien unlawfully present in the United
461 States under certain circumstances; providing an
462 exception to reporting requirements for crime victims
463 or witnesses; requiring recordkeeping relating to
464 crime victim and witness cooperation in certain
465 investigations; specifying duties concerning certain
466 arrested persons; specifying duties concerning
467 immigration detainers; authorizing state entities or
468 law enforcement agencies to petition the Federal
469 Government for reimbursement of certain costs;
470 requiring reports of violations; providing penalties
471 for failure to report violations; providing whistle
472 blower protections for persons who report violations;
473 requiring the Attorney General to prescribe and
474 provide the format for submitting complaints;
475 providing requirements for entities to comply with
476 document requests from state attorneys concerning
477 violations; providing for investigation of possible
478 violations; providing for injunctive relief and civil
479 penalties; providing for venue; requiring written
480 findings; prohibiting the expenditure of public funds
481 for specified purposes; providing a civil cause of
482 action for personal injury or wrongful death
483 attributed to a sanctuary policy; providing that a
484 trial by jury is a matter of right; requiring written
485 findings; providing for ineligibility to receive
486 certain funding for a specified period of time;
487 providing for applicability to certain education
488 records; prohibiting discrimination on specified
489 grounds; providing for implementation; requiring
490 repeal of existing sanctuary policies within a
491 specified period; providing effective dates.