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.
   32  Be It Enacted by the Legislature of the State of Florida:
   34         Section 1. Chapter 908, Florida Statutes, consisting of
   35  sections 908.101-908.109, is created to read:
   36         908.101Legislative 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         908.102Definitions.—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         908.103Sanctuary 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         908.104Cooperation 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         908.105Duties 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         908.106Reimbursement 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         908.107Enforcement.—
  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         908.108Education 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         908.109Discrimination 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.