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         908.101Legislative 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         908.102Definitions.—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         908.103Sanctuary 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         908.104Cooperation 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         908.105Duties 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         908.106Reimbursement 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         908.107Enforcement.—
  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         908.108Education 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         908.109Discrimination 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.