CS for CS for CS for SB 168                      First Engrossed
    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.
   35  Be It Enacted by the Legislature of the State of Florida:
   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         908.101Legislative 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         908.102Definitions.—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         908.103Sanctuary 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         908.104Cooperation 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         908.105Duties 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         908.106Reimbursement 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         908.107Enforcement.—
  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         908.108Education 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         908.109Discrimination 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.