Florida Senate - 2019 CS for CS for SB 168 By the Committees on Infrastructure and Security; and Judiciary; and Senators Gruters, Bean, and Mayfield 596-02970-19 2019168c2 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 CHAPTER 908 37 FEDERAL IMMIGRATION ENFORCEMENT 38 908.101 Legislative findings and intent.—The Legislature 39 finds that it is an important state interest to cooperate and 40 assist the federal government in the enforcement of federal 41 immigration laws within this state. 42 908.102 Definitions.—As used in this chapter, the term: 43 (1) “Federal immigration agency” means the United States 44 Department of Justice and the United States Department of 45 Homeland Security, a division within such an agency, including 46 United States Immigration and Customs Enforcement and United 47 States Customs and Border Protection, any successor agency, and 48 any other federal agency charged with the enforcement of 49 immigration law. The term includes an official or employee of 50 such an agency. 51 (2) “Immigration detainer” means a facially sufficient 52 written or electronic request issued by a federal immigration 53 agency using that agency’s official form to request that another 54 law enforcement agency detain a person based on probable cause 55 to believe that the person to be detained is a removable alien 56 under federal immigration law, including detainers issued 57 pursuant to 8 U.S.C. ss. 1226 and 1357 along with a warrant 58 described in paragraph (c). For purposes of this subsection, an 59 immigration detainer is deemed facially sufficient if: 60 (a) The federal immigration agency’s official form is 61 complete and indicates on its face that the federal immigration 62 official has probable cause to believe that the person to be 63 detained is a removable alien under federal immigration law; or 64 (b) The federal immigration agency’s official form is 65 incomplete and fails to indicate on its face that the federal 66 immigration official has probable cause to believe that the 67 person to be detained is a removable alien under federal 68 immigration law, but is supported by an affidavit, order, or 69 other official documentation that indicates that the federal 70 immigration agency has probable cause to believe that the person 71 to be detained is a removable alien under federal immigration 72 law; and 73 (c) The federal immigration agency supplies with its 74 detention request a Form I-200 Warrant for Arrest of Alien or a 75 Form I-205 Warrant of Removal/Deportation or a successor warrant 76 or other warrant authorized by federal law. 77 (3) “Inmate” means a person in the custody of a law 78 enforcement agency. 79 (4) “Law enforcement agency” means an agency in this state 80 charged with enforcement of state, county, municipal, or federal 81 laws or with managing custody of detained persons in the state 82 and includes municipal police departments, sheriff’s offices, 83 state police departments, state university and college police 84 departments, county correctional agencies, and the Department of 85 Corrections. The term includes an official or employee of such 86 an agency. 87 (5) “Local governmental entity” means any county, 88 municipality, or other political subdivision of this state. The 89 term includes a person holding public office or having official 90 duties as a representative, agent, or employee of the entity. 91 (6) “Sanctuary policy” means a law, policy, practice, 92 procedure, or custom adopted or permitted by a state entity, 93 local governmental entity, or law enforcement agency which 94 contravenes 8 U.S.C. s. 1373(a) or (b) or which knowingly 95 prohibits or impedes a law enforcement agency from communicating 96 or cooperating with a federal immigration agency with respect to 97 federal immigration enforcement, including, but not limited to, 98 limiting a law enforcement agency in, or prohibiting such agency 99 from: 100 (a) Complying with an immigration detainer; 101 (b) Complying with a request from a federal immigration 102 agency to notify the agency before the release of an inmate or 103 detainee in the custody of the law enforcement agency; 104 (c) Providing a federal immigration agency access to an 105 inmate for interview; 106 (d) Participating in any program or agreement authorized 107 under section 287 of the Immigration and Nationality Act, 8 108 U.S.C. s. 1357; or 109 (e) Providing a federal immigration agency with an inmate’s 110 incarceration status or release date. 111 (7) “State entity” means the state or any office, board, 112 bureau, commission, department, branch, division, or institution 113 thereof, including institutions within the State University 114 System and the Florida College System. The term includes a 115 person holding public office or having official duties as a 116 representative, agent, or employee of the entity. 117 908.103 Sanctuary policies prohibited.—A state entity, law 118 enforcement agency, or local governmental entity may not adopt 119 or have in effect a sanctuary policy. 120 908.104 Cooperation with federal immigration authorities.— 121 (1) A law enforcement agency shall use best efforts to 122 support the enforcement of federal immigration law. This 123 subsection applies to an official, representative, agent, or 124 employee of the entity or agency only when he or she is acting 125 within the scope of his or her official duties or within the 126 scope of his or her employment. 127 (2) Except as otherwise expressly prohibited by federal 128 law, a state entity, local governmental entity, or law 129 enforcement agency may not prohibit or in any way restrict a law 130 enforcement agency from taking any of the following actions with 131 respect to information regarding a person’s immigration status: 132 (a) Sending the information to or requesting, receiving, or 133 reviewing the information from a federal immigration agency for 134 purposes of this chapter. 135 (b) Recording and maintaining the information for purposes 136 of this chapter. 137 (c) Exchanging the information with a federal immigration 138 agency or another state entity, local governmental entity, or 139 law enforcement agency for purposes of this chapter. 140 (d) Using the information to comply with an immigration 141 detainer. 142 (e) Using the information to confirm the identity of a 143 person who is detained by a law enforcement agency. 144 (3)(a) For purposes of this subsection the term “applicable 145 criminal case” means a criminal case in which: 146 1. The judgment requires the defendant to be confined in a 147 secure correctional facility; and 148 2. The judge: 149 a. Indicates in the record under s. 908.105 that the 150 defendant is subject to an immigration detainer; or 151 b. Otherwise indicates in the record that the defendant is 152 subject to a transfer into federal custody. 153 (b) In an applicable criminal case, when the judge 154 sentences a defendant who is the subject of an immigration 155 detainer to confinement, the judge shall issue an order 156 requiring the secure correctional facility in which the 157 defendant is to be confined to reduce the defendant’s sentence 158 by a period of not more than 7 days on the facility’s 159 determination that the reduction in sentence will facilitate the 160 seamless transfer of the defendant into federal custody. For 161 purposes of this paragraph, the term “secure correctional 162 facility” means a state correctional institution as defined in 163 s. 944.02 or a county detention facility or a municipal 164 detention facility as defined in s. 951.23. 165 (c) If the information specified in sub-subparagraph 166 (a)2.a. or sub-subparagraph (a)2.b. is not available at the time 167 the sentence is pronounced in the case, but is received by a law 168 enforcement agency afterwards, the law enforcement agency shall 169 notify the judge who shall issue the order described by 170 paragraph (b) as soon as the information becomes available. 171 (4) When a county correctional facility or the Department 172 of Corrections receives verification from a federal immigration 173 agency that a person subject to an immigration detainer is in 174 the law enforcement agency’s custody, the agency may securely 175 transport the person to a federal facility in this state or to 176 another point of transfer to federal custody outside the 177 jurisdiction of the law enforcement agency. However, the law 178 enforcement agency may transport a person who is subject to an 179 immigration detainer and is confined in a secure correctional 180 facility only upon authorization by a court order unless the 181 transportation will occur within the 7 day period under 182 subsection (3). A law enforcement agency shall obtain judicial 183 authorization before securely transporting an alien to a point 184 of transfer outside of this state. 185 (5) This section does not require a state entity, local 186 governmental entity, or law enforcement agency to provide a 187 federal immigration agency with information related to a victim 188 of or a witness to a criminal offense if the victim or witness 189 timely and in good faith responds to the entity’s or agency’s 190 request for information and cooperation in the investigation or 191 prosecution of the offense. 192 (6) A state entity, local governmental entity, or law 193 enforcement agency that, pursuant to subsection (5), withholds 194 information regarding the immigration information of a victim of 195 or witness to a criminal offense shall document the victim’s or 196 witness’s cooperation in the entity’s or agency’s investigative 197 records related to the offense and shall retain the records for 198 at least 10 years for the purpose of audit, verification, or 199 inspection by the Auditor General. 200 908.105 Duties related to immigration detainers.— 201 (1) A law enforcement agency that has custody of a person 202 subject to an immigration detainer issued by a federal 203 immigration agency shall: 204 (a) Provide to the judge authorized to grant or deny the 205 person’s release on bail under chapter 903 notice that the 206 person is subject to an immigration detainer. 207 (b) Record in the person’s case file that the person is 208 subject to an immigration detainer. 209 (c) Upon determining that the immigration detainer is in 210 accordance with s. 908.102(2), comply with the requests made in 211 the immigration detainer. 212 (2) A law enforcement agency is not required to perform a 213 duty imposed by paragraph (1)(a) or paragraph (1)(b) with 214 respect to a person who is transferred to the custody of the 215 agency by another law enforcement agency if the transferring 216 agency performed that duty before the transfer. 217 (3) A judge who receives notice that a person is subject to 218 an immigration detainer shall cause the fact to be recorded in 219 the court record, regardless of whether the notice is received 220 before or after a judgment in the case. 221 908.106 Reimbursement of costs.—Each county correctional 222 facility shall enter into an agreement or agreements with a 223 federal immigration agency for temporarily housing persons who 224 are the subject of immigration detainers and for the payment of 225 the costs of housing and detaining those persons. A compliant 226 agreement may include any contract between a correctional 227 facility and a federal immigration agency for housing or 228 detaining persons subject to immigration detainers, such as 229 basic ordering agreements in effect on or after July 1, 2019, 230 agreements authorized by section 287 of the Immigration and 231 Nationality Act, 8 U.S.C. s. 1357, or successor agreements and 232 other similar agreements authorized by federal law. 233 908.107 Enforcement.— 234 (1) The Attorney General may institute a civil action 235 against any state entity, local government entity, or law 236 enforcement agency for a violation of this chapter or to prevent 237 a violation of this chapter. An action for relief may include an 238 action for an injunction or any other appropriate orders or 239 relief. Upon adjudication by the court or as provided in a 240 consent decree declaring that a state entity, local governmental 241 entity, or law enforcement agency has violated this chapter, the 242 court shall enjoin the unlawful sanctuary policy. The court has 243 continuing jurisdiction over the parties and subject matter and 244 may enforce its orders with the initiation of contempt 245 proceedings as provided by law. 246 (2) An order approving a consent decree or granting an 247 injunction must include written findings of fact that describe 248 with specificity the existence and nature of the sanctuary 249 policy that is in violation of s. 908.103. 250 908.108 Education records.—This chapter does not apply to 251 the release of information contained in education records of an 252 educational agency or institution, except in conformity with the 253 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. s. 254 1232g. 255 908.109 Discrimination prohibited.—A state entity, a local 256 governmental entity, or a law enforcement agency, or a person 257 employed by or otherwise under the direction or control of the 258 entity or agency, may not base its actions under this chapter on 259 the gender, race, religion, national origin, or physical 260 disability of a person except to the extent authorized by the 261 United States Constitution or the State Constitution. 262 Section 2. A sanctuary policy, as defined in s. 908.102, 263 Florida Statutes, that is in effect on the effective date of 264 this act violates the public policy of this state and must be 265 repealed within 90 days after that date. 266 Section 3. Section 908.107, Florida Statutes, as created by 267 this act, shall take effect October 1, 2019, and, except as 268 otherwise expressly provided in this act, this act shall take 269 effect July 1, 2019.