CS for CS for CS for SB 168 First Engrossed 2019168e1 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; providing 22 applicability; specifying duties concerning 23 immigration detainers; requiring county correctional 24 facilities to enter agreements for payments for 25 complying with immigration detainers; providing for 26 enforcement; providing for declaratory or injunctive 27 relief; requiring a court to enjoin unlawful sanctuary 28 policies; requiring written findings of fact under 29 certain circumstances; providing for applicability to 30 certain education records; prohibiting discrimination 31 on specified grounds; providing for implementation; 32 requiring repeal of existing sanctuary policies within 33 a specified period; providing effective dates. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37 Section 1. Chapter 908, Florida Statutes, consisting of 38 sections 908.101-908.109, is created to read: 39 CHAPTER 908 40 FEDERAL IMMIGRATION ENFORCEMENT 41 908.101 Legislative findings and intent.—The Legislature 42 finds that it is an important state interest to cooperate and 43 assist the federal government in the enforcement of federal 44 immigration laws within this state. 45 908.102 Definitions.—As used in this chapter, the term: 46 (1) “Federal immigration agency” means the United States 47 Department of Justice and the United States Department of 48 Homeland Security, a division within such an agency, including 49 United States Immigration and Customs Enforcement and United 50 States Customs and Border Protection, any successor agency, and 51 any other federal agency charged with the enforcement of 52 immigration law. 53 (2) “Immigration detainer” means a facially sufficient 54 written or electronic request issued by a federal immigration 55 agency using that agency’s official form to request that another 56 law enforcement agency detain a person based on probable cause 57 to believe that the person to be detained is a removable alien 58 under federal immigration law, including detainers issued 59 pursuant to 8 U.S.C. ss. 1226 and 1357 along with a warrant 60 described in paragraph (c). For purposes of this subsection, an 61 immigration detainer is deemed facially sufficient if: 62 (a) The federal immigration agency’s official form is 63 complete and indicates on its face that the federal immigration 64 official has probable cause to believe that the person to be 65 detained is a removable alien under federal immigration law; or 66 (b) The federal immigration agency’s official form is 67 incomplete and fails to indicate on its face that the federal 68 immigration official has probable cause to believe that the 69 person to be detained is a removable alien under federal 70 immigration law, but is supported by an affidavit, order, or 71 other official documentation that indicates that the federal 72 immigration agency has probable cause to believe that the person 73 to be detained is a removable alien under federal immigration 74 law; and 75 (c) The federal immigration agency supplies with its 76 detention request a Form I-200 Warrant for Arrest of Alien or a 77 Form I-205 Warrant of Removal/Deportation or a successor warrant 78 or other warrant authorized by federal law. 79 (3) “Inmate” means a person in the custody of a law 80 enforcement agency. 81 (4) “Law enforcement agency” means an agency in this state 82 charged with enforcement of state, county, municipal, or federal 83 laws or with managing custody of detained persons in this state 84 and includes municipal police departments, sheriff’s offices, 85 state police departments, state university and college police 86 departments, county correctional agencies, and the Department of 87 Corrections. 88 (5) “Local governmental entity” means any county, 89 municipality, or other political subdivision of this state. 90 (6) “Sanctuary policy” means a law, policy, practice, 91 procedure, or custom adopted or allowed by a state entity or 92 local governmental entity which prohibits or impedes a law 93 enforcement agency from complying with 8 U.S.C. s. 1373 or which 94 prohibits or impedes a law enforcement agency from communicating 95 or cooperating with a federal immigration agency so as to limit 96 such law enforcement agency in, or prohibit the agency from: 97 (a) Complying with an immigration detainer; 98 (b) Complying with a request from a federal immigration 99 agency to notify the agency before the release of an inmate or 100 detainee in the custody of the law enforcement agency; 101 (c) Providing a federal immigration agency access to an 102 inmate for interview; 103 (d) Participating in any program or agreement authorized 104 under section 287 of the Immigration and Nationality Act, 8 105 U.S.C. s. 1357; or 106 (e) Providing a federal immigration agency with an inmate’s 107 incarceration status or release date. 108 (7) “State entity” means the state or any office, board, 109 bureau, commission, department, branch, division, or institution 110 thereof, including institutions within the State University 111 System and the Florida College System. The term does not include 112 the Department of Children and Families or the employees of the 113 department. 114 908.103 Sanctuary policies prohibited.—A state entity, law 115 enforcement agency, or local governmental entity may not adopt 116 or have in effect a sanctuary policy. 117 908.104 Cooperation with federal immigration authorities.— 118 (1) A law enforcement agency shall use best efforts to 119 support the enforcement of federal immigration law. This 120 subsection applies to an official, representative, agent, or 121 employee of the entity or agency only when he or she is acting 122 within the scope of his or her official duties or within the 123 scope of his or her employment. 124 (2) Except as otherwise expressly prohibited by federal 125 law, a state entity, local governmental entity, or law 126 enforcement agency, or an employee, an agent, or a 127 representative of the entity or agency, may not prohibit or in 128 any way restrict a law enforcement agency from taking any of the 129 following actions with respect to information regarding a 130 person’s immigration status: 131 (a) Sending the information to or requesting, receiving, or 132 reviewing the information from a federal immigration agency for 133 purposes of this chapter. 134 (b) Recording and maintaining the information for purposes 135 of this chapter. 136 (c) Exchanging the information with a federal immigration 137 agency or another state entity, local governmental entity, or 138 law enforcement agency for purposes of this chapter. 139 (d) Using the information to comply with an immigration 140 detainer. 141 (e) Using the information to confirm the identity of a 142 person who is detained by a law enforcement agency. 143 (3)(a) For purposes of this subsection, the term 144 “applicable criminal case” means a criminal case in which: 145 1. The judgment requires the defendant to be confined in a 146 secure correctional facility; and 147 2. The judge: 148 a. Indicates in the record under s. 908.105 that the 149 defendant is subject to an immigration detainer; or 150 b. Otherwise indicates in the record that the defendant is 151 subject to a transfer into federal custody. 152 (b) In an applicable criminal case, when the judge 153 sentences a defendant who is the subject of an immigration 154 detainer to confinement, the judge shall issue an order 155 requiring the secure correctional facility in which the 156 defendant is to be confined to reduce the defendant’s sentence 157 by a period of not more than 12 days on the facility’s 158 determination that the reduction in sentence will facilitate the 159 seamless transfer of the defendant into federal custody. For 160 purposes of this paragraph, the term “secure correctional 161 facility” means a state correctional institution as defined in 162 s. 944.02 or a county detention facility or a municipal 163 detention facility as defined in s. 951.23. 164 (c) If the information specified in sub-subparagraph 165 (a)2.a. or sub-subparagraph (a)2.b. is not available at the time 166 the sentence is pronounced in the case, but is received by a law 167 enforcement agency afterwards, the law enforcement agency shall 168 notify the judge who shall issue the order described by 169 paragraph (b) as soon as the information becomes available. 170 (4) When a county correctional facility or the Department 171 of Corrections receives verification from a federal immigration 172 agency that a person subject to an immigration detainer is in 173 the law enforcement agency’s custody, the agency may securely 174 transport the person to a federal facility in this state or to 175 another point of transfer to federal custody outside the 176 jurisdiction of the law enforcement agency. The law enforcement 177 agency may transfer a person who is subject to an immigration 178 detainer and is confined in a secure correctional facility to 179 the custody of a federal immigration agency not earlier than 12 180 days before his or her release date. A law enforcement agency 181 shall obtain judicial authorization before securely transporting 182 an alien to a point 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 (7) This section does not authorize a law enforcement 199 agency to detain an alien unlawfully present in the United 200 States pursuant to an immigration detainer solely because the 201 alien witnessed or reported a crime or was a victim of a 202 criminal offense. 203 (8) This section does not apply to any alien unlawfully 204 present in the United States if he or she is or has been a 205 necessary witness or victim of a crime of domestic violence, 206 rape, sexual exploitation, sexual assault, murder, manslaughter, 207 assault, battery, human trafficking, kidnapping, false 208 imprisonment, involuntary servitude, fraud in foreign labor 209 contracting, blackmail, extortion, or witness tampering. 210 908.105 Duties related to immigration detainers.— 211 (1) A law enforcement agency that has custody of a person 212 subject to an immigration detainer issued by a federal 213 immigration agency shall: 214 (a) Provide to the judge authorized to grant or deny the 215 person’s release on bail under chapter 903 notice that the 216 person is subject to an immigration detainer. 217 (b) Record in the person’s case file that the person is 218 subject to an immigration detainer. 219 (c) Upon determining that the immigration detainer is in 220 accordance with s. 908.102(2), comply with the requests made in 221 the immigration detainer. 222 (2) A law enforcement agency is not required to perform a 223 duty imposed by paragraph (1)(a) or paragraph (1)(b) with 224 respect to a person who is transferred to the custody of the 225 agency by another law enforcement agency if the transferring 226 agency performed that duty before the transfer. 227 (3) A judge who receives notice that a person is subject to 228 an immigration detainer shall cause the fact to be recorded in 229 the court record, regardless of whether the notice is received 230 before or after a judgment in the case. 231 908.106 Reimbursement of costs.—Each county correctional 232 facility shall enter into an agreement or agreements with a 233 federal immigration agency for temporarily housing persons who 234 are the subject of immigration detainers and for the payment of 235 the costs of housing and detaining those persons. A compliant 236 agreement may include any contract between a correctional 237 facility and a federal immigration agency for housing or 238 detaining persons subject to immigration detainers, such as 239 basic ordering agreements in effect on or after July 1, 2019, 240 agreements authorized by section 287 of the Immigration and 241 Nationality Act, 8 U.S.C. s. 1357, or successor agreements and 242 other similar agreements authorized by federal law. 243 908.107 Enforcement.— 244 (1) Any executive or administrative state, county, or 245 municipal officer who violates his or her duties under this 246 chapter may be subject to action by the Governor in the exercise 247 of his or her authority under the State Constitution and state 248 law. Pursuant to s. 1(b), Art. IV of the State Constitution, the 249 Governor may initiate judicial proceedings in the name of the 250 state against such officers to enforce compliance with any duty 251 under this chapter or restrain any unauthorized act contrary to 252 this chapter. 253 (2) In addition, the Attorney General may file suit against 254 a local governmental entity or local law enforcement agency in a 255 court of competent jurisdiction for declaratory or injunctive 256 relief for a violation of this chapter. 257 (3) If a local governmental entity or local law enforcement 258 agency violates this chapter, the court must enjoin the unlawful 259 sanctuary policy. The court has continuing jurisdiction over the 260 parties and subject matter and may enforce its orders with the 261 initiation of contempt proceedings as provided by law. 262 (4) An order approving a consent decree or granting an 263 injunction must include written findings of fact that describe 264 with specificity the existence and nature of the sanctuary 265 policy that violates this chapter. 266 908.108 Education records.—This chapter does not apply to 267 the release of information contained in education records of an 268 educational agency or institution, except in conformity with the 269 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. s. 270 1232g. 271 908.109 Discrimination prohibited.—A state entity, a local 272 governmental entity, or a law enforcement agency, or a person 273 employed by or otherwise under the direction or control of the 274 entity or agency, may not base its actions under this chapter on 275 the gender, race, religion, national origin, or physical 276 disability of a person except to the extent authorized by the 277 United States Constitution or the State Constitution. 278 Section 2. A sanctuary policy, as defined in s. 908.102, 279 Florida Statutes, that is in effect on the effective date of 280 this act violates the public policy of this state and must be 281 repealed within 90 days after that date. 282 Section 3. Section 908.107, Florida Statutes, as created by 283 this act, shall take effect October 1, 2019, and, except as 284 otherwise expressly provided in this act, this act shall take 285 effect July 1, 2019.