BILL NUMBER: AB 4 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 24, 2013
AMENDED IN SENATE JUNE 14, 2013
INTRODUCED BY Assembly Member Ammiano
(Principal coauthors: Assembly Members Alejo and V. Manuel Pérez)
(Principal coauthor: Senator De León)
(Coauthor: Assembly Member Skinner)
DECEMBER 3, 2012
An act to add Chapter 17.1 (commencing with Section 7282) to
Division 7 of Title 1 of the Government Code, relating to state
government.
LEGISLATIVE COUNSEL'S DIGEST
AB 4, as amended, Ammiano. State government: federal immigration
policy enforcement.
Existing federal law authorizes any authorized immigration officer
to issue an immigration detainer that serves to advise another law
enforcement agency that the federal department seeks custody of an
alien presently in the custody of that agency, for the purpose of
arresting and removing the alien. Existing federal law provides that
the detainer is a request that the agency advise the department,
prior to release of the alien, in order for the department to arrange
to assume custody in situations when gaining immediate physical
custody is either impracticable or impossible.
This bill would prohibit a law enforcement official, as defined,
from detaining an individual on the basis of a United States
Immigration and Customs Enforcement hold after that individual
becomes eligible for release from criminal
custody, unless, at the time that the individual becomes eligible for
release from criminal custody, certain conditions
are met. This bill would prohibit an immigration detainer or
suspected or actual immigration status from being the basis for
denial of certain pretrial or postconviction services and programs,
rights, opportunities, or benefits to individuals in county custody.
The bill also would prohibit a law enforcement official from
arresting, detaining, or continuing to detain a person based on an
administrative warrant entered into the Federal Bureau of
Investigation's National Crime Information Center database or a
successor or similar database, when the administrative warrant is
based solely on a violation of civil immigration law
met, including, among other things, that the
individual has been convicted of specified crimes .
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The United States Immigration and Customs Enforcement's (ICE)
Secure Communities program shifts the burden of federal civil
immigration enforcement onto local law enforcement. To operate the
Secure Communities program, ICE relies on voluntary requests, known
as ICE holds or detainers, to local law enforcement to hold
individuals in local jails for additional time beyond when they would
be eligible for release in a criminal matter.
(b) State and local law enforcement agencies are not reimbursed by
the federal government for the full cost of responding to a
detainer, which can include, but is not limited to, extended
detention time and the administrative costs of tracking and
responding to detainers.
(c) Unlike criminal detainers, which are supported by a warrant
and require probable cause, there is no requirement for a warrant and
no established standard of proof, such as reasonable suspicion or
probable cause, for issuing an ICE detainer request. Immigration
detainers have erroneously been placed on United States citizens, as
well as immigrants who are not deportable.
(d) The Secure Communities program and immigration detainers harm
community policing efforts because immigrant residents who are
victims of or witnesses to crime, including domestic violence, are
less likely to report crime or cooperate with law enforcement when
any contact with law enforcement could result in deportation. The
program can result in a person being held and transferred into
immigration detention without regard to whether the arrest is the
result of a mistake, or merely a routine practice of questioning
individuals involved in a dispute without pressing charges. Victims
or witnesses to crimes may otherwise have recourse to lawful status
(such as U-visas or T-visas) that detention resulting from the Secure
Communities program obstructs.
(e) It is the intent of the Legislature that this act shall not be
construed as providing, expanding, or ratifying the legal authority
for any state or local law enforcement agency to detain an individual
on an immigration hold.
SEC. 2. Chapter 17.1 (commencing with Section 7282) is added to
Division 7 of Title 1 of the Government Code, to read:
CHAPTER 17.1. STANDARDS FOR RESPONDING TO UNITED STATES
IMMIGRATION AND CUSTOMS ENFORCEMENT HOLDS
7282. For purposes of this chapter, the following terms have the
following meanings:
(a) "Conviction" shall have the same meaning as subdivision (d) of
Section 667 of the Penal Code.
(b) "Eligible for release from criminal custody"
means that the individual may be released from criminal
custody because one of the following conditions has
occurred:
(1) All criminal charges against the individual have been dropped
or dismissed.
(2) The individual has been acquitted of all criminal charges
filed against him or her.
(3) The individual has served all the time required for his or her
sentence.
(4) The individual has posted a bond.
(5) The individual is otherwise eligible for release under state
or local law, or local policy.
(c) "Immigration hold" means an immigration detainer issued by an
authorized immigration officer, pursuant to Section 287.7 of Title 8
of the Code of Federal Regulations, that requests that the law
enforcement official to maintain custody of the individual for a
period not to exceed 48 hours, excluding Saturdays, Sundays, and
holidays, and to advise the authorized immigration officer prior to
the release of that individual.
(d) "Administrative warrant" means an immigration warrant issued
by ICE, or a successor or similar federal agency charged with
enforcement of civil immigration laws, used as a noncriminal, civil
warrant for immigration purposes.
(e)
(d) "Law enforcement official" means any local agency
or officer of a local agency authorized to enforce criminal statutes,
regulations, or local ordinances or to operate jails or to maintain
custody of individuals in jails, and any person or local agency
authorized to operate juvenile detention facilities or to maintain
custody of individuals in juvenile detention facilities.
(f)
(e) "Local agency" means any city, county, city and
county, special district, or other political subdivision of the
state.
(g)
(f) "Serious felony" means any of the offenses listed
in subdivision (c) of Section 1192.7 of the Penal Code and any
offense committed in another state which, if committed in California,
would be punishable as a serious felony as defined by subdivision
(c) of Section 1192.7 of the Penal Code.
(h)
(g) "Violent felony" means any of the offenses listed
in subdivision (c) of Section 667.5 of the Penal Code and any offense
committed in another state which, if committed in California, would
be punishable as a violent felony as defined by subdivision (c) of
Section 667.5 of the Penal Code.
7282.5. (a) A law enforcement official has the discretion to
detain an individual on the basis of an immigration hold after that
individual becomes eligible for release from criminal custody, only
if both of the following conditions are satisfied:
(1) The individual has been convicted of a serious or violent
felony that, if committed in California on January 1, 2013, would
result in a sentence to state prison, according to a criminal
background check or documentation provided to the law enforcement
official by United States Immigration and Customs Enforcement.
(2) The continued detention of the individual on the basis of the
immigration hold would not violate any federal, state, or local law,
or any local policy.
(b) If either of the conditions set forth in subdivision (a) is
not satisfied, an individual shall not be detained on the basis of an
immigration hold after that individual becomes eligible for release
from criminal custody.
(c) An immigration detainer or suspected or actual immigration
status shall not be a basis to deny any pretrial or postconviction
services and programs, rights, opportunities, or benefits to
individuals in county custody, including alternatives to
incarceration, rehabilitation, drug treatment, educational and
vocational programs, early release, probation, bail, and release on
their own recognizance.
(d) A law enforcement official shall not arrest, detain, or
continue to detain a person based on an administrative warrant
entered into the Federal Bureau of Investigation's National Crime
Information Center database or a successor or similar database
maintained by the United States, when the administrative warrant is
based solely on a violation of civil immigration law.
7282.5. (a) A law enforcement official shall have discretion to
cooperate with federal immigration officials by detaining an
individual on the basis of an immigration hold after that individual
becomes eligible for release from custody only if the continued
detention of the individual on the basis of the immigration hold
would not violate any federal, state, or local law, or any local
policy, and only under any of the following circumstances:
(1) The individual has been convicted of a serious or violent
felony identified in subdivision (c) of Section 1192.7 of, or
subdivision (c) of Section 667.5 of, the Penal Code.
(2) The individual has been convicted of a felony punishable by
imprisonment in the state prison.
(3) The individual has been convicted within the past five years
of a misdemeanor for a crime that is punishable as either a
misdemeanor or a felony for, or has been convicted at any time of a
felony for, any of the following offenses:
(A) Assault, as specified in, but not limited to, Sections 217.1,
220, 240, 241.1, 241.4, 241.7, 244, 244.5, 245, 245.2, 245.3, 245.5,
4500, and 4501 of the Penal Code.
(B) Battery, as specified in, but not limited to, Sections 242,
243.1, 243.3, 243.4, 243.6, 243.7, 243.9, 273.5, 347, 4501.1, and
4501.5 of the Penal Code.
(C) Use of threats, as specified in, but not limited to, Sections
71, 76, 139, 140, 422, 601, and 11418.5 of the Penal Code.
(D) Sexual abuse, sexual exploitation, or crimes endangering
children, as specified in, but not limited to, Sections 266, 266a,
266b, 266c, 266d, 266f, 266g, 266h, 266i, 266j, 267, 269, 288, 288.5,
311.1, 311.3, 311.4, 311.10, 311.11, and 647.6 of the Penal Code.
(E) Child abuse or endangerment, as specified in, but not limited
to, Sections 270, 271, 271a, 273a, 273ab, 273d, 273.4, and 278 of the
Penal Code.
(F) Burglary, robbery, theft, fraud, forgery, or embezzlement, as
specified in, but not limited to, Sections 211, 215, 459, 463, 470,
476, 487, 496, 503, 518, 530.5, 532, and 550 of the Penal Code.
(G) Driving under the influence of alcohol or drugs, but only for
a conviction that is a felony.
(H) Obstruction of justice, as specified in, but not limited to,
Sections 69, 95, 95.1, 136.1, and 148.10 of the Penal Code.
(I) Bribery, as specified in, but not limited to, Sections 67,
67.5, 68, 74, 85, 86, 92, 93, 137, 138, and 165 of the Penal Code.
(J) Escape, as specified in, but not limited to, Sections 107,
109, 110, 4530, 4530.5, 4532, 4533, 4534, 4535, and 4536 of the Penal
Code.
(K) Unlawful possession or use of a weapon, firearm, explosive
device, or weapon of mass destruction, as specified in, but not
limited to, Sections 171b, 171c, 171d, 246, 246.3, 247, 417, 417.3,
417.6, 417.8, 4574, 11418, 11418.1, 12021.5, 12022, 12022.2, 12022.3,
12022.4, 12022.5, 12022.53, 12022.55, 18745, 18750, 18755 of, and
subdivisions (c) and (d) of Section 26100 of the Penal Code.
(L) Possession of an unlawful deadly weapon, under the Deadly
Weapons Recodification Act of 2010 (Part 6 (commencing with Section
16000) of the Penal Code).
(M) An offense involving the felony possession, sale,
distribution, manufacture, or trafficking of controlled substances.
(N) Vandalism with prior convictions, as specified in, but not
limited to, Section 594.7 of the Penal Code.
(O) Gang-related offenses, as specified in, but not limited to,
Sections 186.22, 186.26, and 186.28 of the Penal Code.
(P) An attempt, as defined in Section 664 of, or a conspiracy, as
defined in Section 182 of, the Penal Code, to commit an offense
specified in this section.
(Q) A crime resulting in death, or involving the personal
infliction of great bodily injury, as specified in, but not limited
to, subdivision (d) of Section 245.6 of, and Sections 187, 191.5,
192, 192.5, 12022.7, 12022.8, and 12022.9 of, the Penal Code.
(R) Possession or use of a firearm in the commission of an
offense.
(S) An offense that would require the individual to register as a
sex offender pursuant to Section 290, 290.002, or 290.006 of the
Penal Code.
(T) False imprisonment, slavery, and human trafficking, as
specified in, but not limited to, Sections 181, 210.5, 236, 236.1,
and 4503 of the Penal Code.
(U) Criminal profiteering and money laundering, as specified in,
but not limited to, Sections 186.2, 186.9, and 186.10 of the Penal
Code.
(V) Torture and mayhem, as specified in, but not limited to,
Section 203 of the Penal Code.
(W) A crime threatening the public safety, as specified in, but
not limited to, Sections 219, 219.1, 219.2, 247.5, 404, 404.6, 405a,
451, and 11413 of the Penal Code.
(X) Elder and dependent adult abuse, as specified in, but not
limited to, Section 368 of the Penal Code.
(Y) A hate crime, as specified in, but not limited to, Section
422.55 of the Penal Code.
(Z) Stalking, as specified in, but not limited to, Section 646.9
of the Penal Code.
(AA) Soliciting the commission of a crime, as specified in, but
not limited to, subdivision (c) of Section 286 of, and Sections 653j
and 653.23 of, the Penal Code.
(AB) An offense committed while on bail or released on his or her
own recognizance, as specified in, but not limited to, Section
12022.1 of the Penal Code.
(AC) Rape, sodomy, oral copulation, or sexual penetration, as
specified in, but not limited to, paragraphs (2) and (6) of
subdivision (a) of Section 261 of, paragraphs (1) and (4) of
subdivision (a) of Section 262 of, Section 264.1 of, subdivisions (c)
and (d) of Section 286 of, subdivisions (c) and (d) of Section 288a
of, and subdivisions (a) and (j) of Section 289 of, the Penal Code.
(AD) Kidnapping, as specified in, but not limited to, Sections
207, 209, and 209.5 of the Penal Code.
(AE) A violation of subdivision (c) of Section 20001 of the
Vehicle Code.
(4) The individual is a current registrant on the California Sex
and Arson Registry.
(5) The individual is arrested and taken before a magistrate on a
charge involving a serious or violent felony, as identified in
subdivision (c) of Section 1192.7 or subdivision (c) of Section 667.5
of the Penal Code, a felony punishable by imprisonment in state
prison, or any felony listed in paragraph (2) or (3) other than
domestic violence, and the magistrate makes a finding of probable
cause as to that charge pursuant to Section 872 of the Penal Code.
(b) If none of the conditions listed in subdivision (a) is
satisfied, an individual shall not be detained on the basis of an
immigration hold after the individual becomes eligible for release
from custody.
SEC. 3. The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.