Florida Senate - 2019 CS for CS for CS for SB 168 By the Committees on Rules; Infrastructure and Security; and Judiciary; and Senators Gruters, Bean, Mayfield, and Broxson 595-04574-19 2019168c3 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. 50 (2) “Immigration detainer” means a facially sufficient 51 written or electronic request issued by a federal immigration 52 agency using that agency’s official form to request that another 53 law enforcement agency detain a person based on probable cause 54 to believe that the person to be detained is a removable alien 55 under federal immigration law, including detainers issued 56 pursuant to 8 U.S.C. ss. 1226 and 1357 along with a warrant 57 described in paragraph (c). For purposes of this subsection, an 58 immigration detainer is deemed facially sufficient if: 59 (a) The federal immigration agency’s official form is 60 complete and indicates on its face that the federal immigration 61 official has probable cause to believe that the person to be 62 detained is a removable alien under federal immigration law; or 63 (b) The federal immigration agency’s official form is 64 incomplete and fails to indicate on its face that the federal 65 immigration official has probable cause to believe that the 66 person to be detained is a removable alien under federal 67 immigration law, but is supported by an affidavit, order, or 68 other official documentation that indicates that the federal 69 immigration agency has probable cause to believe that the person 70 to be detained is a removable alien under federal immigration 71 law; and 72 (c) The federal immigration agency supplies with its 73 detention request a Form I-200 Warrant for Arrest of Alien or a 74 Form I-205 Warrant of Removal/Deportation or a successor warrant 75 or other warrant authorized by federal law. 76 (3) “Inmate” means a person in the custody of a law 77 enforcement agency. 78 (4) “Law enforcement agency” means an agency in this state 79 charged with enforcement of state, county, municipal, or federal 80 laws or with managing custody of detained persons in this state 81 and includes municipal police departments, sheriff’s offices, 82 state police departments, state university and college police 83 departments, county correctional agencies, and the Department of 84 Corrections. 85 (5) “Local governmental entity” means any county, 86 municipality, or other political subdivision of this state. 87 (6) “Sanctuary policy” means a law, policy, practice, 88 procedure, or custom adopted or permitted by a state entity, 89 local governmental entity, or law enforcement agency which 90 contravenes 8 U.S.C. s. 1373(a) or (b) or which knowingly 91 prohibits or impedes a law enforcement agency from communicating 92 or cooperating with a federal immigration agency with respect to 93 federal immigration enforcement, including, but not limited to, 94 limiting a law enforcement agency in, or prohibiting such agency 95 from: 96 (a) Complying with an immigration detainer; 97 (b) Complying with a request from a federal immigration 98 agency to notify the agency before the release of an inmate or 99 detainee in the custody of the law enforcement agency; 100 (c) Providing a federal immigration agency access to an 101 inmate for interview; 102 (d) Participating in any program or agreement authorized 103 under section 287 of the Immigration and Nationality Act, 8 104 U.S.C. s. 1357; or 105 (e) Providing a federal immigration agency with an inmate’s 106 incarceration status or release date. 107 (7) “State entity” means the state or any office, board, 108 bureau, commission, department, branch, division, or institution 109 thereof, including institutions within the State University 110 System and the Florida College System. 111 908.103 Sanctuary policies prohibited.—A state entity, law 112 enforcement agency, or local governmental entity may not adopt 113 or have in effect a sanctuary policy. 114 908.104 Cooperation with federal immigration authorities.— 115 (1) A law enforcement agency shall use best efforts to 116 support the enforcement of federal immigration law. This 117 subsection applies to an official, representative, agent, or 118 employee of the entity or agency only when he or she is acting 119 within the scope of his or her official duties or within the 120 scope of his or her employment. 121 (2) Except as otherwise expressly prohibited by federal 122 law, a state entity, local governmental entity, or law 123 enforcement agency, or an employee, an agent, or a 124 representative of the entity or agency, may not prohibit or in 125 any way restrict a law enforcement agency from taking any of the 126 following actions with respect to information regarding a 127 person’s immigration status: 128 (a) Sending the information to or requesting, receiving, or 129 reviewing the information from a federal immigration agency for 130 purposes of this chapter. 131 (b) Recording and maintaining the information for purposes 132 of this chapter. 133 (c) Exchanging the information with a federal immigration 134 agency or another state entity, local governmental entity, or 135 law enforcement agency for purposes of this chapter. 136 (d) Using the information to comply with an immigration 137 detainer. 138 (e) Using the information to confirm the identity of a 139 person who is detained by a law enforcement agency. 140 (3)(a) For purposes of this subsection, the term 141 “applicable criminal case” means a criminal case in which: 142 1. The judgment requires the defendant to be confined in a 143 secure correctional facility; and 144 2. The judge: 145 a. Indicates in the record under s. 908.105 that the 146 defendant is subject to an immigration detainer; or 147 b. Otherwise indicates in the record that the defendant is 148 subject to a transfer into federal custody. 149 (b) In an applicable criminal case, when the judge 150 sentences a defendant who is the subject of an immigration 151 detainer to confinement, the judge shall issue an order 152 requiring the secure correctional facility in which the 153 defendant is to be confined to reduce the defendant’s sentence 154 by a period of not more than 12 days on the facility’s 155 determination that the reduction in sentence will facilitate the 156 seamless transfer of the defendant into federal custody. For 157 purposes of this paragraph, the term “secure correctional 158 facility” means a state correctional institution as defined in 159 s. 944.02 or a county detention facility or a municipal 160 detention facility as defined in s. 951.23. 161 (c) If the information specified in sub-subparagraph 162 (a)2.a. or sub-subparagraph (a)2.b. is not available at the time 163 the sentence is pronounced in the case, but is received by a law 164 enforcement agency afterwards, the law enforcement agency shall 165 notify the judge who shall issue the order described by 166 paragraph (b) as soon as the information becomes available. 167 (4) When a county correctional facility or the Department 168 of Corrections receives verification from a federal immigration 169 agency that a person subject to an immigration detainer is in 170 the law enforcement agency’s custody, the agency may securely 171 transport the person to a federal facility in this state or to 172 another point of transfer to federal custody outside the 173 jurisdiction of the law enforcement agency. The law enforcement 174 agency may transfer a person who is subject to an immigration 175 detainer and is confined in a secure correctional facility to 176 the custody of a federal immigration agency not earlier than 12 177 days before his or her release date. A law enforcement agency 178 shall obtain judicial authorization before securely transporting 179 an alien to a point of transfer outside of this state. 180 (5) This section does not require a state entity, local 181 governmental entity, or law enforcement agency to provide a 182 federal immigration agency with information related to a victim 183 of or a witness to a criminal offense if the victim or witness 184 timely and in good faith responds to the entity’s or agency’s 185 request for information and cooperation in the investigation or 186 prosecution of the offense. 187 (6) A state entity, local governmental entity, or law 188 enforcement agency that, pursuant to subsection (5), withholds 189 information regarding the immigration information of a victim of 190 or witness to a criminal offense shall document the victim’s or 191 witness’s cooperation in the entity’s or agency’s investigative 192 records related to the offense and shall retain the records for 193 at least 10 years for the purpose of audit, verification, or 194 inspection by the Auditor General. 195 908.105 Duties related to immigration detainers.— 196 (1) A law enforcement agency that has custody of a person 197 subject to an immigration detainer issued by a federal 198 immigration agency shall: 199 (a) Provide to the judge authorized to grant or deny the 200 person’s release on bail under chapter 903 notice that the 201 person is subject to an immigration detainer. 202 (b) Record in the person’s case file that the person is 203 subject to an immigration detainer. 204 (c) Upon determining that the immigration detainer is in 205 accordance with s. 908.102(2), comply with the requests made in 206 the immigration detainer. 207 (2) A law enforcement agency is not required to perform a 208 duty imposed by paragraph (1)(a) or paragraph (1)(b) with 209 respect to a person who is transferred to the custody of the 210 agency by another law enforcement agency if the transferring 211 agency performed that duty before the transfer. 212 (3) A judge who receives notice that a person is subject to 213 an immigration detainer shall cause the fact to be recorded in 214 the court record, regardless of whether the notice is received 215 before or after a judgment in the case. 216 908.106 Reimbursement of costs.—Each county correctional 217 facility shall enter into an agreement or agreements with a 218 federal immigration agency for temporarily housing persons who 219 are the subject of immigration detainers and for the payment of 220 the costs of housing and detaining those persons. A compliant 221 agreement may include any contract between a correctional 222 facility and a federal immigration agency for housing or 223 detaining persons subject to immigration detainers, such as 224 basic ordering agreements in effect on or after July 1, 2019, 225 agreements authorized by section 287 of the Immigration and 226 Nationality Act, 8 U.S.C. s. 1357, or successor agreements and 227 other similar agreements authorized by federal law. 228 908.107 Enforcement.— 229 (1) The Attorney General may institute a civil action 230 against any state entity, local government entity, or law 231 enforcement agency for a violation of this chapter or to prevent 232 a violation of this chapter. An action for relief may include an 233 action for an injunction or any other appropriate orders or 234 relief. Upon adjudication by the court or as provided in a 235 consent decree declaring that a state entity, local governmental 236 entity, or law enforcement agency has violated this chapter, the 237 court shall enjoin the unlawful sanctuary policy. The court has 238 continuing jurisdiction over the parties and subject matter and 239 may enforce its orders with the initiation of contempt 240 proceedings as provided by law. 241 (2) An order approving a consent decree or granting an 242 injunction must include written findings of fact that describe 243 with specificity the existence and nature of the sanctuary 244 policy that is in violation of s. 908.103. 245 908.108 Education records.—This chapter does not apply to 246 the release of information contained in education records of an 247 educational agency or institution, except in conformity with the 248 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. s. 249 1232g. 250 908.109 Discrimination prohibited.—A state entity, a local 251 governmental entity, or a law enforcement agency, or a person 252 employed by or otherwise under the direction or control of the 253 entity or agency, may not base its actions under this chapter on 254 the gender, race, religion, national origin, or physical 255 disability of a person except to the extent authorized by the 256 United States Constitution or the State Constitution. 257 Section 2. A sanctuary policy, as defined in s. 908.102, 258 Florida Statutes, that is in effect on the effective date of 259 this act violates the public policy of this state and must be 260 repealed within 90 days after that date. 261 Section 3. Section 908.107, Florida Statutes, as created by 262 this act, shall take effect October 1, 2019, and, except as 263 otherwise expressly provided in this act, this act shall take 264 effect July 1, 2019.