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AB-2596 Law enforcement: data sharing.(2019-2020)

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Date Published: 04/29/2020 09:00 PM
AB2596:v98#DOCUMENT

Amended  IN  Assembly  May 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2596


Introduced by Assembly Members Bonta and Chiu

February 20, 2020


An act relating to criminal law.An act to amend Sections 7284.2, 7284.4, 7284.6, and 7284.10 of, and to repeal Chapter 17 (commencing with Section 7282) of Division 7 of Title 1 of, the Government Code, relating to law enforcement.


LEGISLATIVE COUNSEL'S DIGEST


AB 2596, as amended, Bonta. Criminal law: immigrants. Law enforcement: data sharing.
(1) Existing law, the California Values Act, prohibits a California law enforcement agency from providing a person’s release date, or responding to a request for notification of a release date, unless that information is available to the public, and prohibits the transfer of an individual to immigration authorities, as specified, unless the person has been convicted of specified crimes or arrested for a serious or violent felony.
This bill would instead prohibit a law enforcement agency from providing an immigration authority with information regarding a person’s release date or responding to a notification request by providing a release date for the individual or other information in all circumstances. If release dates are available online, the bill would require that the information be released only upon providing the individual’s first and last name and would require the person requesting the information to indicate, under penalty of perjury, that the information is not being accessed for immigration purposes. By expanding the existing crime of perjury, this bill would impose a state-mandated local program.
The bill would also prohibit a law enforcement agency from complying with a subpoena from an immigration authority seeking information for immigration enforcement purposes unless it is signed by a federal judge or federal magistrate judge. The bill would prohibit a law enforcement agency from transferring an individual to an immigration authority or facilitating or assisting with a transfer request. The bill would prohibit a law enforcement agency from providing an immigration authority with access to a nonpublic area of a facility for immigration enforcement purposes. The bill would remove authority to give immigration authorities access to interview an individual who is in custody.
(2) Existing law allows a law enforcement agency to investigate, enforce, or detain or arrest an individual who is deportable for specified criminal activity that is detected during an unrelated law enforcement activity.
This bill would delete that authorization.
(3) Existing law allows a law enforcement agency to conduct enforcement or investigative duties associated with a joint law enforcement task force with federal law enforcement if the primary purpose of the joint task force is not immigration enforcement.
This bill would remove that authority if a purpose of the joint task force is immigration enforcement.
(4) Existing law requires the agency to report annually to the Department of Justice the number of transfers it makes to immigration authorities and the offenses that allowed for the transfer.
This bill would instead require the law enforcement agency to report the number of immigration hold requests, transfer requests, notification requests, and civil immigration warrants the agency has received, the number the agency responded to, and the reason for each response. By expanding the duties of local law enforcement agencies, this bill would impose a state-mandated local program.
(5) Existing law requires the Attorney General to annually report on the total number of arrests made by joint law enforcement task forces and the total number of arrests made for the purpose of immigration enforcement by all task force participants.
This bill would require the Attorney General to report the number of immigration hold requests, transfer requests, notification requests, and civil immigration warrants each law enforcement agency has received, the number each agency has responded to, and the reason for each response. The bill would require the Attorney General to report the number of joint law enforcement taskforces each agency has been involved in, the federal and California law enforcement agencies involved in each, and the total number of arrests made for the purpose of immigration enforcement.
(6) Existing law prohibits the Department of Corrections and Rehabilitation from restricting access to in-prison educational or rehabilitative programming or credit-earning opportunities on the sole basis of citizenship or immigration status, or from considering citizenship or immigration status as a factor in determining a person’s classification level.
This bill would also prohibit the department from detaining a person on the basis of a hold request, providing an immigration authority with release date information, responding to a notification request, transferring an individual to an immigration authority , or facilitating or assisting with a transfer request regarding an individual who is eligible to be released after serving time for offenses that were committed when the person was 25 years of age or younger. The bill would prohibit the department from detaining an individual on a hold request from an immigration authority, allowing parole agents to facilitate or assist an immigration authority with immigration enforcement, or requesting an immigration authority to place a hold, notification, or transfer request on a person based on information that the person was born in a foreign country.
(7) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law generally prescribes the procedure for the prosecution of persons arrested for committing a crime, including pleadings, pretrial proceedings, trial, judgment, sentencing, and appeals.

This bill would state the intent of the Legislature to enact legislation relating to advancing immigrant rights in the criminal justice system.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Chapter 17.1 (commencing with Section 7282) of Division 7 of Title 1 of the Government Code is repealed.

SEC. 2.

 Section 7284.2 of the Government Code is amended to read:

7284.2.
 The Legislature finds and declares the following:
(a) Immigrants are valuable and essential members of the California community. Almost one in three Californians is foreign born and one in two children in California has at least one immigrant parent.
(b) A relationship of trust between California’s immigrant community and state and local agencies is central to the public safety of the people of California.
(c) This trust is threatened when state and local agencies are entangled with federal immigration enforcement, with the result that immigrant community members fear approaching police when they are victims of, and witnesses to, crimes, seeking basic health services, or attending school, to the detriment of public safety and the well-being of all Californians.
(d) Entangling state and local agencies with federal immigration enforcement programs diverts already limited resources and blurs the lines of accountability between local, state, and federal governments.
(e) State and local participation in federal immigration enforcement programs also raises constitutional concerns, including the prospect that California residents could be detained in violation of the Fourth Amendment to the United States Constitution, targeted on the basis of race or ethnicity in violation of the Equal Protection Clause, or denied access to education based on immigration status. See Sanchez Ochoa v. Campbell, et al. (E.D. Wash. 2017) 2017 WL 3476777; Trujillo Santoya v. United States, et al. (W.D. Tex. 2017) 2017 WL 2896021; Moreno v. Napolitano (N.D. Ill. 2016) 213 F. Supp. 3d 999; Morales v. Chadbourne (1st Cir. 2015) 793 F.3d 208; Miranda-Olivares v. Clackamas County (D. Or. 2014) 2014 WL 1414305; Galarza v. Szalczyk (3d Cir. 2014) 745 F.3d 634.
(f) In recent years, parole reforms, including Senate Bill 260 of the 2013–14 Regular Session (Hancock), Senate Bill 261 of the 2015–16 Regular Session (Hancock), and Assembly Bill 1308 of the 2017–18 Regular Session (Stone), have been enacted to provide an avenue for relief to draconian sentences imposed on youth 25 years of age and younger who were tried as adults and served time in a state prison. Unfortunately, immigrants and refugees who have earned release through the rigorous parole hearing process or who have served determinate sentences are regularly turned over to immigration authorities instead of being released back to their families and communities. In many cases, these individuals are then deported to countries they left as children. This act ensures equitable implementation of several criminal justice reform measures which the Legislature passed to allow individuals who received prison sentences for offenses committed while under 25 years of age an opportunity at obtaining parole.
(g) The Department of Corrections and Rehabilitation has regularly contacted immigration authorities to request that an immigration hold request be placed on an individual because of information that the individual may be foreign-born. When the individual is scheduled to be released from state prison, the department then coordinates with immigration authorities to transfer the individual into immigration custody for immigration enforcement purposes. This problematic practice has ensnared individuals who are United States citizens or otherwise not deportable.
(h) In March 2018, the Department of Corrections and Rehabilitation adopted a policy and practice of not detaining individuals based on an immigration hold request because of Fourth Amendment concerns as these requests are not based on a finding of probable cause or signed by a judge.

(f)

(i) This chapter seeks to ensure effective policing, to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments.

(g)

(j) It is the intent of the Legislature that this chapter shall not be construed as providing, expanding, or ratifying any legal authority for any state or local law enforcement agency to participate in immigration enforcement.

SEC. 3.

 Section 7284.4 of the Government Code is amended to read:

7284.4.
 For purposes of this chapter, the following terms have the following meanings:
(a) “California law enforcement agency” means a state or local law enforcement agency, including school police or security departments. any state or local agency authorized to enforce criminal statutes, regulations, or local ordinances, including, but not limited to, school police or security departments, operate jails or maintain custody of individuals in jails, or operate juvenile detention facilities, including the Department of Youth and Community Restoration. “California law enforcement agency” does not include the Department of Corrections and Rehabilitation.
(b) “Civil immigration warrant” means any warrant for a violation of federal civil immigration law, and includes civil immigration warrants entered in the National Crime Information Center database.
(c) “Immigration authority” means any federal, state, or local officer, employee, or subcontractor therefore, or person performing immigration enforcement functions.
(d) “Health facility” includes health facilities as defined in Section 1250 of the Health and Safety Code, clinics as defined in Sections 1200 and 1200.1 of the Health and Safety Code, and substance abuse treatment facilities.

(e)“Hold request,” “notification request,” “transfer request,” and “local law enforcement agency” have the same meaning as provided in Section 7283. Hold, notification, and transfer requests include requests issued by United States Immigration and Customs Enforcement or United States Customs and Border Protection as well as any other immigration authorities.

(e) (1) “Hold request” means any immigration authority request, however communicated, that a California law enforcement agency or the Department of Corrections and Rehabilitation arrest, detain, or maintain custody of an individual for immigration enforcement purposes, including, but not limited to, requests issued by an immigration authority using Department of Homeland Security (DHS) Form I-247 or I-247A.
(2) “Notification request” means any immigration authority request, however communicated, that a California law enforcement agency or the Department of Corrections and Rehabilitation notify an immigration authority of the date and time of release of an individual prior to their release. This includes, but is not limited to, requests issued by an immigration authority using DHS Form I-247 or I-247A.
(3) “Transfer request” means any immigration authority request, however communicated, that a California law enforcement agency or the Department of Corrections and Rehabilitation facilitate or assist an immigration authority with arresting or detaining an individual for immigration enforcement purposes. Facilitating or assisting with a transfer request includes, but is not limited to, a California law enforcement agency or the department allowing an immigration authority to enter a nonpublic area of a law enforcement facility, including, but not limited to, a sally port, hallway, elevator, holding cell, interview room, or booking area that is not accessible to the public, or releasing an individual directly to an immigration authority.
(f) “Immigration enforcement” includes any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal civil immigration law, and also includes any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal criminal immigration law that penalizes a person’s presence in, entry, or reentry to, or employment in, the United States.
(g) “Joint law enforcement task force” means at least one California law enforcement agency collaborating, engaging, or partnering with at least one federal law enforcement agency in investigating federal or state crimes.

(h)“Judicial probable cause determination” means a determination made by a federal judge or federal magistrate judge that probable cause exists that an individual has violated federal criminal immigration law and that authorizes a law enforcement officer to arrest and take into custody the individual.

(i)

(h) “Judicial warrant” means a warrant based on probable cause for a violation of federal criminal immigration law and issued by a federal judge or a federal magistrate judge that authorizes a law enforcement officer to arrest and take into custody the person who is the subject of the warrant.

(j)

(i) “Public schools” means all public elementary and secondary schools under the jurisdiction of local governing boards or a charter school board, the California State University, and the California Community Colleges.

(k)

(j) “School police and security departments” includes police and security departments of the California State University, the California Community Colleges, charter schools, county offices of education, schools, and school districts.

SEC. 4.

 Section 7284.6 of the Government Code is amended to read:

7284.6.
 (a) California law enforcement agencies shall not:
(1) Use agency or department moneys or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including any of the following:
(A) Inquiring into an individual’s immigration status.
(B) Detaining an individual on the basis of a hold request.
(C) Providing an immigration authority with information regarding a person’s release date or responding to requests for notification a notification request by providing a release dates date or other information unless that information is available to the public, or is in response to a notification request from immigration authorities in accordance with Section 7282.5. Responses are never required, but are permitted under this subdivision, provided that they do not violate any local law or policy. information. If release dates are accessible to the public through a California law enforcement agency’s internet website, the detained individual’s first and last name shall be required before that individual’s release date information may be disclosed to the inquiring member of the public. The internet website shall also require that the inquiring member of the public check a box indicating, under penalty of perjury, that they are not accessing the information for immigration enforcement purposes prior to the release date of the information being disclosed.
(D) Providing an immigration authority with personal information, as defined in Section 1798.3 of the Civil Code, about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public. address.
(E) Complying with a subpoena from an immigration authority seeking information for immigration enforcement purposes that is not signed by a federal judge or federal magistrate judge.
(F) Transferring an individual to an immigration authority, or facilitating or assisting with a transfer.
(G) Providing or allowing an immigration authority access to a nonpublic area of a California law enforcement facility or to an individual in law enforcement custody for immigration enforcement purposes.

(E)

(H) Making or intentionally participating in arrests based on civil immigration warrants.

(F)

(I) Assisting immigration authorities in the activities described in Section 1357(a)(3) of Title 8 of the United States Code.

(G)

(J) Performing the functions of an immigration officer, whether pursuant to Section 1357(g) of Title 8 of the United States Code or any other law, regulation, or policy, whether formal or informal.
(2) Place peace officers under the supervision of federal agencies or employ peace officers deputized as special federal officers or special federal deputies for purposes of immigration enforcement. All peace officers remain subject to California law governing conduct of peace officers and the policies of the employing agency.
(3) Use immigration authorities as interpreters for law enforcement matters relating to individuals in agency or department custody.

(4)Transfer an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination, or in accordance with Section 7282.5.

(5)

(4) Provide office space exclusively or partially dedicated for immigration authorities for use within a city or county law enforcement facility.

(6)

(5) Contract with the federal government for use of California law enforcement agency facilities to house individuals as federal detainees for purposes of civil immigration custody, except pursuant to Chapter 17.8 (commencing with Section 7310).
(b) Notwithstanding the limitations in subdivision (a), this section does not prevent any California law enforcement agency from doing any of the following that does not violate any policy of the law enforcement agency or any local law or policy of the jurisdiction in which the agency is operating:

(1)Investigating, enforcing, or detaining upon reasonable suspicion of, or arresting for a violation of, Section 1326(a) of Title 8 of the United States Code that may be subject to the enhancement specified in Section 1326(b)(2) of Title 8 of the United States Code and that is detected during an unrelated law enforcement activity. Transfers to immigration authorities are permitted under this subsection only in accordance with paragraph (4) of subdivision (a).

(2)

(1) Responding to a request from immigration authorities for information about a specific person’s criminal history, including previous criminal arrests, convictions, or similar criminal history information accessed through the California Law Enforcement Telecommunications System (CLETS), where otherwise permitted by state law.

(3)

(2) Conducting enforcement or investigative duties associated with a joint law enforcement task force, including the sharing of confidential information with other law enforcement agencies for purposes of task force investigations, so long as the following conditions are met:
(A) The primary A purpose of the joint law enforcement task force is not immigration enforcement, as defined in subdivision (f) of Section 7284.4.
(B) The joint law enforcement task force is not part of Operation Stonegarden or any successor program.

(B)

(C) The enforcement or investigative duties are primarily only related to a violation of state or federal law unrelated to immigration enforcement.

(C)

(D) Participation in the task force by a California law enforcement agency does not violate any local law or policy to which it is otherwise subject.

(4)

(3) Making inquiries into information necessary to certify an individual who has been identified as a potential crime or trafficking victim for a T or U Visa pursuant to Section 1101(a)(15)(T) or 1101(a)(15)(U) of Title 8 of the United States Code or to comply with Section 922(d)(5) of Title 18 of the United States Code.

(5)Giving immigration authorities access to interview an individual in agency or department custody. All interview access shall comply with requirements of the TRUTH Act (Chapter 17.2 (commencing with Section 7283)).

(c) (1) If a California law enforcement agency chooses to participate in a joint law enforcement task force, for which a California law enforcement agency has agreed to dedicate personnel or resources on an ongoing basis, it shall submit a report annually to the Department of Justice, as specified by the Attorney General. The law enforcement agency shall report the following information, if known, for each task force of which it is a member:
(A) The purpose of the task force.
(B) The federal, state, and local law enforcement agencies involved.
(C) The total number of arrests made during the reporting period.
(D) The number of people arrested for immigration enforcement purposes.
(2) All law enforcement agencies shall report annually to the Department of Justice, in a manner specified by the Attorney General, the number of transfers pursuant to paragraph (4) of subdivision (a), and the offense that allowed for the transfer pursuant to paragraph (4) of subdivision (a). immigration hold requests, transfer requests, notification requests, and civil immigration warrants each California law enforcement agency has received, and the number the agency has responded to, and the reason for each response.
(3) All records described in this subdivision shall be public records for purposes of the California Public Records Act (Chapter 3.5 (commencing with Section 6250)), including the exemptions provided by that act and, as permitted under that act, personal identifying information may be redacted prior to public disclosure. To the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation or a related investigation, that information shall not be disclosed.
(4) If more than one California law enforcement agency is participating in a joint task force that meets the reporting requirement pursuant to this section, the joint task force shall designate a local or state agency responsible for completing the reporting requirement.
(d) The Attorney General, by March 1, 2019, and annually thereafter, shall report on the number of immigration hold requests, transfer requests, notification requests, and civil immigration warrants each California law enforcement agency has received, the number the agency has responded to, and the reason for each response. The Attorney General shall also report, annually, for each California law enforcement agency, the number of joint law enforcement taskforces each agency has been involved in, the federal and California law enforcement agencies involved in each joint law enforcement taskforce, the total number of arrests made by joint law enforcement task forces, made, and the total number of arrests made for the purpose of immigration enforcement by all task force participants, including federal law enforcement agencies. enforcement. To the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation or a related investigation, that information shall not be included in the Attorney General’s report. The Attorney General shall post the reports required by this subdivision on the Attorney General’s Internet Web site. internet website.
(e) This section does not prohibit or restrict any government entity or official from sending to, or receiving from, federal immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful, of an individual, or from requesting from federal immigration authorities immigration status information, lawful or unlawful, of any individual, or maintaining or exchanging that information with any other federal, state, or local government entity, pursuant to Sections 1373 and 1644 of Title 8 of the United States Code.
(f) Nothing in this section shall prohibit a California law enforcement agency from asserting its own jurisdiction over criminal law enforcement matters.

SEC. 5.

 Section 7284.10 of the Government Code is amended to read:

7284.10.
 (a) The Department of Corrections and Rehabilitation shall:
(1) In advance of any interview between the United States Immigration and Customs Enforcement (ICE) an immigration authority and an individual in department custody regarding civil immigration violations, custody, provide the individual with a written consent form that explains the purpose of the interview, that the interview is voluntary, and that he or she the individual may decline to be interviewed or may choose to be interviewed only with his or her their attorney present. The written consent form shall be available in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean.
(2) Upon receiving any ICE hold, notification, or transfer request, provide a copy of the request to the individual and inform him or her the individual of whether the department intends to comply with the request.
(3) If the department provides an immigration authority with notification that an individual is being released, or will be released, on a certain date, the department shall promptly provide the same notification in writing to the individual and to their attorney or to one additional person designated by the individual.
(b) The Department of Corrections and Rehabilitation shall not:
(1) Restrict access to any in-prison educational or rehabilitative programming, or credit-earning opportunity on the sole basis of citizenship or immigration status, including, but not limited to, whether the person is in removal proceedings, or immigration authorities have issued a hold request, transfer request, notification request, or civil immigration warrant against the individual.
(2) Consider citizenship and immigration status as a factor in determining a person’s custodial classification level, level or placement in a department facility, including, but not limited to, whether the person is in removal proceedings, or whether immigration authorities have issued a hold request, transfer request, notification request, or civil immigration warrant against the individual.
(3) Detain on the basis of a hold request, provide an immigration authority with release date information, or respond to a notification request, transfer to an immigration authority, or facilitate or assist with a transfer request regarding an individual who is eligible to be released after serving time for offenses committed when the individual was 25 years of age or younger.
(4) Detain an individual on a hold request from an immigration authority.
(5) Allow parole agents to facilitate or assist an immigration authority with immigration enforcement.
(6) Request that an immigration authority place a hold, notification, or transfer request on an individual based on information that an individual was born in a foreign country.

SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.

It is the intent of the Legislature to enact legislation relating to advancing immigrant rights in the criminal justice system.