Florida Senate - 2019 CS for SB 168 By the Committee on Judiciary; and Senators Gruters and Bean 590-02493-19 2019168c1 1 A bill to be entitled 2 An act relating to federal immigration enforcement; 3 creating chapter 908, F.S., relating to federal 4 immigration enforcement; providing legislative 5 findings and intent; providing definitions; 6 prohibiting sanctuary policies; requiring state 7 entities, local governmental entities, and law 8 enforcement agencies to use best efforts to support 9 the enforcement of federal immigration law; 10 prohibiting restrictions by the entities and agencies 11 on taking certain actions with respect to information 12 regarding a person’s immigration status; providing 13 requirements concerning certain criminal defendants 14 subject to immigration detainers or otherwise subject 15 to transfer to federal custody; authorizing a law 16 enforcement agency to transport an alien unlawfully 17 present in the United States under certain 18 circumstances; providing an exception to reporting 19 requirements for crime victims or witnesses; requiring 20 recordkeeping relating to crime victim and witness 21 cooperation in certain investigations; specifying 22 duties concerning immigration detainers; requiring 23 county correctional facilities to enter agreements for 24 payments for complying with immigration detainers; 25 providing for injunctive relief; providing for 26 applicability to certain education records; 27 prohibiting discrimination on specified grounds; 28 providing for implementation; requiring repeal of 29 existing sanctuary policies within a specified period; 30 providing effective dates. 31 32 Be It Enacted by the Legislature of the State of Florida: 33 34 Section 1. Chapter 908, Florida Statutes, consisting of 35 sections 908.101-908.109, is created to read: 36 908.101 Legislative findings and intent.—The Legislature 37 finds that it is an important state interest to cooperate and 38 assist the federal government in the enforcement of federal 39 immigration laws within this state. 40 908.102 Definitions.—As used in this chapter, the term: 41 (1) “Federal immigration agency” means the United States 42 Department of Justice and the United States Department of 43 Homeland Security, a division within such an agency, including 44 United States Immigration and Customs Enforcement and United 45 States Customs and Border Protection, any successor agency, and 46 any other federal agency charged with the enforcement of 47 immigration law. The term includes an official or employee of 48 such an agency. 49 (2) “Immigration detainer” means a facially sufficient 50 written or electronic request issued by a federal immigration 51 agency using that agency’s official form to request that another 52 law enforcement agency detain a person based on probable cause 53 to believe that the person to be detained is a removable alien 54 under federal immigration law, including detainers issued 55 pursuant to 8 U.S.C. ss. 1226 and 1357 along with a warrant 56 described in paragraph (c). For purposes of this subsection, an 57 immigration detainer is deemed facially sufficient if: 58 (a) The federal immigration agency’s official form is 59 complete and indicates on its face that the federal immigration 60 official has probable cause to believe that the person to be 61 detained is a removable alien under federal immigration law; or 62 (b) The federal immigration agency’s official form is 63 incomplete and fails to indicate on its face that the federal 64 immigration official has probable cause to believe that the 65 person to be detained is a removable alien under federal 66 immigration law, but is supported by an affidavit, order, or 67 other official documentation that indicates that the federal 68 immigration agency has probable cause to believe that the person 69 to be detained is a removable alien under federal immigration 70 law; and 71 (c) The federal immigration agency supplies with its 72 detention request a Form I-200 Warrant for Arrest of Alien or a 73 Form I-205 Warrant of Removal/Deportation or a successor warrant 74 or other warrant authorized by federal law. 75 (3) “Inmate” means a person in the custody of a law 76 enforcement agency. 77 (4) “Law enforcement agency” means an agency in this state 78 charged with enforcement of state, county, municipal, or federal 79 laws or with managing custody of detained persons in the state 80 and includes municipal police departments, sheriff’s offices, 81 state police departments, state university and college police 82 departments, county correctional agencies, and the Department of 83 Corrections. The term includes an official or employee of such 84 an agency. 85 (5) “Local governmental entity” means any county, 86 municipality, or other political subdivision of this state. The 87 term includes a person holding public office or having official 88 duties as a representative, agent, or employee of the entity. 89 (6) “Sanctuary policy” means a law, policy, practice, 90 procedure, or custom adopted or permitted by a state entity, 91 local governmental entity, or law enforcement agency which 92 contravenes 8 U.S.C. s. 1373(a) or (b) or which knowingly 93 prohibits or impedes a law enforcement agency from communicating 94 or cooperating with a federal immigration agency with respect to 95 federal immigration enforcement, including, but not limited to, 96 limiting a law enforcement agency in, or prohibiting such agency 97 from: 98 (a) Complying with an immigration detainer; 99 (b) Complying with a request from a federal immigration 100 agency to notify the agency before the release of an inmate or 101 detainee in the custody of the law enforcement agency; 102 (c) Providing a federal immigration agency access to an 103 inmate for interview; 104 (d) Participating in any program or agreement authorized 105 under section 287 of the Immigration and Nationality Act, 8 106 U.S.C. s. 1357; or 107 (e) Providing a federal immigration agency with an inmate’s 108 incarceration status or release date. 109 (7) “State entity” means the state or any office, board, 110 bureau, commission, department, branch, division, or institution 111 thereof, including institutions within the State University 112 System and the Florida College System. The term includes a 113 person holding public office or having official duties as a 114 representative, agent, or employee of the entity. 115 908.103 Sanctuary policies prohibited.—A state entity, law 116 enforcement agency, or local governmental entity may not adopt 117 or have in effect a sanctuary policy. 118 908.104 Cooperation with federal immigration authorities.— 119 (1) A law enforcement agency shall use best efforts to 120 support the enforcement of federal immigration law. This 121 subsection applies to an official, representative, agent, or 122 employee of the entity or agency only when he or she is acting 123 within the scope of his or her official duties or within the 124 scope of his or her employment. 125 (2) Except as otherwise expressly prohibited by federal 126 law, a state entity, local governmental entity, or law 127 enforcement agency may not prohibit or in any way restrict a law 128 enforcement agency from taking any of the following actions with 129 respect to information regarding a person’s immigration status: 130 (a) Sending the information to or requesting, receiving, or 131 reviewing the information from a federal immigration agency for 132 purposes of this chapter. 133 (b) Recording and maintaining the information for purposes 134 of this chapter. 135 (c) Exchanging the information with a federal immigration 136 agency or another state entity, local governmental entity, or 137 law enforcement agency for purposes of this chapter. 138 (d) Using the information to comply with an immigration 139 detainer. 140 (e) Using the information to confirm the identity of a 141 person who is detained by a law enforcement agency. 142 (3)(a) For purposes of this subsection the term “applicable 143 criminal case” means a criminal case in which: 144 1. The judgment requires the defendant to be confined in a 145 secure correctional facility; and 146 2. The judge: 147 a. Indicates in the record under s. 908.105 that the 148 defendant is subject to an immigration detainer; or 149 b. Otherwise indicates in the record that the defendant is 150 subject to a transfer into federal custody. 151 (b) In an applicable criminal case, when the judge 152 sentences a defendant who is the subject of an immigration 153 detainer to confinement, the judge shall issue an order 154 requiring the secure correctional facility in which the 155 defendant is to be confined to reduce the defendant’s sentence 156 by a period of not more than 7 days on the facility’s 157 determination that the reduction in sentence will facilitate the 158 seamless transfer of the defendant into federal custody. For 159 purposes of this paragraph, the term “secure correctional 160 facility” means a state correctional institution as defined in 161 s. 944.02 or a county detention facility or a municipal 162 detention facility as defined in s. 951.23. 163 (c) If the information specified in sub-subparagraph 164 (a)2.a. or sub-subparagraph (a)2.b. is not available at the time 165 the sentence is pronounced in the case, but is received by a law 166 enforcement agency afterwards, the law enforcement agency shall 167 notify the judge who shall issue the order described by 168 paragraph (b) as soon as the information becomes available. 169 (4) When a county correctional facility or the Department 170 of Corrections receives verification from a federal immigration 171 agency that a person subject to an immigration detainer is in 172 the law enforcement agency’s custody, the agency may securely 173 transport the person to a federal facility in this state or to 174 another point of transfer to federal custody outside the 175 jurisdiction of the law enforcement agency. However, the law 176 enforcement agency may transport a person who is subject to an 177 immigration detainer and is confined in a secure correctional 178 facility only upon authorization by a court order unless the 179 transportation will occur within the 7 day period under 180 subsection (3). A law enforcement agency shall obtain judicial 181 authorization before securely transporting an alien to a point 182 of transfer outside of this state. 183 (5) This section does not require a state entity, local 184 governmental entity, or law enforcement agency to provide a 185 federal immigration agency with information related to a victim 186 of or a witness to a criminal offense if the victim or witness 187 timely and in good faith responds to the entity’s or agency’s 188 request for information and cooperation in the investigation or 189 prosecution of the offense. 190 (6) A state entity, local governmental entity, or law 191 enforcement agency that, pursuant to subsection (5), withholds 192 information regarding the immigration information of a victim of 193 or witness to a criminal offense shall document the victim’s or 194 witness’s cooperation in the entity’s or agency’s investigative 195 records related to the offense and shall retain the records for 196 at least 10 years for the purpose of audit, verification, or 197 inspection by the Auditor General. 198 908.105 Duties related to immigration detainers.— 199 (1) A law enforcement agency that has custody of a person 200 subject to an immigration detainer issued by a federal 201 immigration agency shall: 202 (a) Provide to the judge authorized to grant or deny the 203 person’s release on bail under chapter 903 notice that the 204 person is subject to an immigration detainer. 205 (b) Record in the person’s case file that the person is 206 subject to an immigration detainer. 207 (c) Upon determining that the immigration detainer is in 208 accordance with s. 908.102(2), comply with the requests made in 209 the immigration detainer. 210 (2) A law enforcement agency is not required to perform a 211 duty imposed by paragraph (1)(a) or paragraph (1)(b) with 212 respect to a person who is transferred to the custody of the 213 agency by another law enforcement agency if the transferring 214 agency performed that duty before the transfer. 215 (3) A judge who receives notice that a person is subject to 216 an immigration detainer shall cause the fact to be recorded in 217 the court record, regardless of whether the notice is received 218 before or after a judgment in the case. 219 908.106 Reimbursement of costs.—Each county correctional 220 facility shall enter into an agreement or agreements with a 221 federal immigration agency for temporarily housing persons who 222 are the subject of immigration detainers and for the payment of 223 the costs of housing and detaining those persons. A compliant 224 agreement may include any contract between a correctional 225 facility and a federal immigration agency for housing or 226 detaining persons subject to immigration detainers, such as 227 basic ordering agreements in effect on or after July 1, 2019, 228 agreements authorized by section 287 of the Immigration and 229 Nationality Act, 8 U.S.C. s. 1357, or successor agreements and 230 other similar agreements authorized by federal law. 231 908.107 Enforcement.— 232 (1) The Attorney General may institute a civil action 233 against any state entity, local government entity, or law 234 enforcement agency for a violation of this chapter or to prevent 235 a violation of this chapter. An action for relief may include an 236 action for an injunction or any other appropriate orders or 237 relief. Upon adjudication by the court or as provided in a 238 consent decree declaring that a state entity, local governmental 239 entity, or law enforcement agency has violated this chapter, the 240 court shall enjoin the unlawful sanctuary policy. The court has 241 continuing jurisdiction over the parties and subject matter and 242 may enforce its orders with the initiation of contempt 243 proceedings as provided by law. 244 (2) An order approving a consent decree or granting an 245 injunction must include written findings of fact that describe 246 with specificity the existence and nature of the sanctuary 247 policy that is in violation of s. 908.103. 248 908.108 Education records.—This chapter does not apply to 249 the release of information contained in education records of an 250 educational agency or institution, except in conformity with the 251 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. s. 252 1232g. 253 908.109 Discrimination prohibited.—A state entity, a local 254 governmental entity, or a law enforcement agency, or a person 255 employed by or otherwise under the direction or control of the 256 entity or agency, may not base its actions under this chapter on 257 the gender, race, religion, national origin, or physical 258 disability of a person except to the extent authorized by the 259 United States Constitution or the State Constitution. 260 Section 2. A sanctuary policy, as defined in s. 908.102, 261 Florida Statutes, that is in effect on the effective date of 262 this act violates the public policy of this state and must be 263 repealed within 90 days after that date. 264 Section 3. Section 908.107, Florida Statutes, as created by 265 this act, shall take effect October 1, 2019, and, except as 266 otherwise expressly provided in this act, this act shall take 267 effect July 1, 2019.