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HomeMy WebLinkAbout16 - City Position in Opposition to SB 54 (de Leon)�EWPR CITY OF T - z NEWPORT BEACH <,FoR�P City Council Staff Report August 8, 2017 Agenda Item No. 16 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager - 949-644-3001, dkiff@newportbeachca.gov PREPARED BY: Dave Kiff, City Manager PHONE: 949-644-3001 TITLE: City Position in Opposition to SB 54 (de Leon), Relating to Law Enforcement Cooperation with Federal Immigration Officers ABSTRACT: Senate Bill 54 (de Leon) generally would expenditures by State and municipal law immigration status. RECOMMENDATION: restrict certain cooperation and resource enforcement in regards to individuals' a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Authorize the City Manager to send a letter in opposition to SB 54 (de Le6n), relating to law enforcement cooperation with US Immigration officers. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: Senate Bill 54 (de Leon, 2017), as currently written (Attachment B), limits State and municipal law enforcement in immigration enforcement actions not involving serious crime that are otherwise done by Federal agents, especially US Immigration and Customs Enforcement (ICE). Much of the bill's emphasis involves attempting to ensure that local law enforcement does not stand in the shoes of nor facilitate US ICE to act against an individual solely on the basis of that person's immigration status. This Senate bill is currently in the California Assembly, awaiting a hearing in the Assembly Appropriations Committee on or about August 15, 2017. 16-1 City Position in Opposition to SB 54 (de Leon), Relating to Law Enforcement Cooperation with Federal Immigration Officers August 8, 2017 Page 2 The Newport Beach Police Department does not act as immigration agents nor does the department have a formalized partnership or agreement with US ICE. We do not participate in immigration "raids" nor would we inquire after a random individual's immigration status. However, in the event that person who is undocumented is jailed and transferred to County jail in Santa Ana, it would not be uncommon for ICE to be in contact with County authorities to question the arrestee as to his or her immigration status. Additionally, it would be rare (but not unheard of) for us to partner with Federal authorities on a raid or other action associated with direct criminal activity — these raids may involve (but not target) undocumented persons as well as US citizens and US residents. In each case, the purpose is for crime suppression versus immigration enforcement. Some opponents of SB 54 have suggested that an unintended consequence of SB 54 would be to limit partnerships, efforts, and communications between local police and US ICE where specific criminal activity is alleged or has occurred. As such, the California Police Chiefs Association (CPCA) recently expressed its concern about (and opposition to) SB 54 and specifically stated this: "Consistent with existing state laws and current department procedures, we strongly believe that undocumented immigrants who commit violent and serious offenses against members of our community should be subject to the immigration laws of this country. By doing so, we prevent dangerous individuals from creating more victims — including within our own immigrant communities.... "Currently, local law enforcement agencies have the discretion to partner with ICE ..., and do so through targeted operations to apprehend identified criminals. For example, ICE may request tactical support from a local police department during an operation to arrest members of a gang or drug cartel for civil or criminal immigration violations. Additionally, local law enforcement also engages in federal joint task forces with various federal law enforcement agencies, including ICE .... These task forces all focus on organized crime, human trafficking and national security, however, immigration enforcement often plays a role in carrying out those missions. For instance, if during a joint investigation into a drug trafficking operation, ... ICE identifies one of the suspects as an individual with an immigration violation, the task force may use that violation to apprehend that suspect. In those such instances, it is typical for local law enforcement to supply information, resources, or even manpower to physically assist in making the arrest. In every case, these are fluid and dynamic partnerships that require constant communication.... "California law enforcement agencies have no intention, or desire, to become the primary enforcers of federal immigration law. Even under ongoing federal changes, local police will keep doing what local police do best — partnering with our community members to ensure everyone is protected. CPCA does recognize that there is a balance that needs to be struck on immigration enforcement — one that takes the focus away from those not posing a threat, 16-2 City Position in Opposition to SB 54 (de Leon), Relating to Law Enforcement Cooperation with Federal Immigration Officers August 8, 2017 Page 3 and allows law enforcement to expend resources protecting our communities from those with ill -intent. Unfortunately, SB 54 will make it more difficult to work with our federal law enforcement partners in apprehending dangerous criminals, and threatens to create more fear in our communities by forcing federal immigration operations out of our jails and into our communities." In discussing this bill and this issue with Police Chief Jon Lewis, we believe that a letter to our California legislative representatives stating concerns similar to those expressed by CPCA is appropriate. Equally important is to re -assert to our community and to our visitors that our public safety efforts are focused on safety and crime suppression, not seeking out immigration violations. A proposed draft letter is Attachment A. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Draft Letter in Opposition on SB 54 Attachment B — Current Text of SB 54 (de Leon) 16-3 Attachment A — Draft Letter August 9, 2017 The Honorable Kevin de Leon President pro Tempore of the California State Senate California State Capitol Sacramento, California 95814 RE: SB 54 (Opposition) Dear Senator de Leon: The City of Newport Beach respectfully states its opposition to your Senate Bill (SB) 54, which (among other things) would limit California law enforcement from using agency or department moneys, facilities, property, equipment, or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. We agree that public safety is the primary concern of local law enforcement, not immigration. Legally, California's law enforcement agencies lack the authority and jurisdiction to enforce federal immigration law. However, there are instances when providing public safety entails partnering with federal law enforcement agencies, including those who primarily do immigration enforcement. We strongly believe that undocumented immigrants who commit violent and serious offenses should be subject to the immigration laws of this country. By doing so, we prevent dangerous individuals from creating more victims. As such, our police department may engage with federal law enforcement agencies — including Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) —for the purpose of eliminating drugs, violence, and crime from our streets. We worry that SB 54 may create roadblocks and ambiguity when it comes to our participation in certain crime suppression activities that may include US ICE. An equal, if not greater concern, is the unintended consequence SB 54 will have by preventing ICE from conducting immigration enforcement operations in our jail or the Orange County Jail. Currently, jails in California may allow ICE access to specified inmates, but the state agency overseeing the jail must provide those inmates with a notification of their rights. Under SB 54, ICE will no longer be allowed access to our jail for immigration enforcement purposes. As a result, ICE may be forced to carry out more field operations in the community. Even during targeted immigration operations, this may result in more collateral detentions — where undocumented individuals at the scene of an arrest and were not the initial targets are detained by ICE. We have no intention, or desire, to become the primary enforcers of federal immigration law. Even under ongoing federal changes, we will do our best to keep doing what we do best — partnering 16-4 with Newport Beach businesses, community members and visitors to ensure everyone is protected from crime. SB 54 may make it more difficult to work with our federal law enforcement partners in apprehending criminals. For this reason, our City respectfully opposes SB 54. Thank you for your consideration of our viewpoint. Sincerely, DAVE KIFF City Manager City of Newport Beach cc: Members of the Newport Beach City Council California State Senator John MW Moorlach California State Assembly Member Matthew Harper 16-5 Attachment B — Current Text of SB 54 (de Le6n) SECTION 1. Chapter 17.25 (commencing with Section 7284) is added to Division 7 of Title 1 of the Government Code, to read: CHAPTER 17.25. Cooperation with Federal Immigration Authorities 7284. This chapter shall be known, and may be cited, as the California Values Act. 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. (0 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. 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. (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) "Federal immigration authority" means any officer, employee, or person otherwise paid by or acting as an agent of United States Immigration and Customs Enforcement or United States Customs and Border Protection, or any division thereof, or any other officer, employee, or person otherwise paid by or acting as an agent of the United States Department of Homeland Security who is charged with immigration enforcement. (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. 16-6 (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 federal immigration authorities. (0 "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. "Immigration enforcement" does not include either of the following: (1) Efforts to investigate, enforce, or assist in the investigation or enforcement of 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. (2) Transferring an individual to federal immigration authorities for a violation of Section 1326(a) of Title 8 of the United States Code that is subject to the enhancement specified in Section 1326(b)(2) of that title if the individual has been previously convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code. (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) "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. Q) "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) "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. 7284.6. (a) California law enforcement agencies shall not do any of the following: (1) Use agency or department moneys, facilities, property, equipment, or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including, but not limited to, any of the following: (A) Inquiring into an individual's immigration status. (B) Detaining an individual on the basis of a hold request. (C) Responding to requests for notification by providing release dates or other information unless that information is available to the public. (D) Providing information regarding a person's release date unless that information is available to the public. (E) Providing personal information about an individual, including, but not limited to, the individual's home address or work address unless that information is available to the public. 16-7 (F) Making, assisting, or participating in arrests based on civil immigration warrants. (G) Giving federal immigration authorities access to interview an individual in agency or department custody, except pursuant to a judicial warrant, and in accordance with Section 7283.1. (H) Assisting federal immigration authorities in the activities described in Section 1357(a)(3) of Title 8 of the United States Code. (1) Performing the functions of an immigration officer, whether pursuant to Section 1357(8) of Title 8 of the United States Code or any other law, regulation, or policy, whether formal or informal. (2) Make agency or department databases, including databases maintained for the agency or department by private vendors, or the information therein other than information within those databases regarding an individual's citizenship or immigration status, available to anyone or any entity for the purpose of immigration enforcement. Any agreements in effect on January 1, 2018, that conflict with the terms of this paragraph are terminated on that date. All persons and entities provided access to agency or department databases shall certify in writing that the database will be kept confidential and will not be used for the purposes prohibited by this section. (3) Place peace officers under the supervision of federal agencies or employ peace officers deputized as special federal officers or special federal deputies except to the extent those peace officers remain subject to California law governing conduct of peace officers and the policies of the employing agency. (4) Use federal immigration authorities as interpreters for law enforcement matters relating to individuals in agency or department custody. (5) Transfer an individual to federal immigration authorities unless authorized by a judicial warrant or judicial probable cause determination, or for a violation of Section 1326(a) of Title 8 of the United States Code that is subject to the enhancement specified in Section 1326(b)(2) of Title 8 of the United States Code and the individual has been previously convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code. (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) Responding to a request from federal immigration authorities for information about a specific person's criminal history, including previous criminal arrests, convictions, and similar criminal history information accessed through the California Law Enforcement Telecommunications System (CLETS), where otherwise permitted by state law. (2) Participating in a joint law enforcement task force, so long as the primary purpose of the joint law enforcement task force is not immigration enforcement, as defined in subdivision (0 of Section 7284.4. (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. (4) Responding to a notification request from federal immigration authorities for a person who is serving a term for the conviction of a misdemeanor or felony offense and has a current or prior conviction for a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code or a serious felony listed in subdivision (c) of Section 1192.7 of the Penal Code. (c) If a California law enforcement agency chooses to participate in a joint law enforcement task force, it shall submit a report every six months to the Department of Justice, as specified by the 16-8 Attorney General. The report shall detail for each task force operation, the purpose of the task force, the federal, state, and local law enforcement agencies involved, the number of California law enforcement agency personnel involved, a description of arrests made for any federal and state crimes, and a description of the number of people arrested for immigration enforcement purposes. 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. (d) The Attorney General, by March 1, 2019, and twice a year thereafter, shall report on the types and frequency of joint law enforcement task forces. The report shall include, for the reporting period, assessments on compliance with paragraph (2) of subdivision (b), a list of all California law enforcement agencies that participate in joint law enforcement task forces, a list of joint law enforcement task forces operating in the state and their purposes, the number of arrests made associated with joint law enforcement task forces for the violation of federal or state crimes, and the number of arrests made associated with joint law enforcement task forces for the purpose of immigration enforcement by all task force participants, including federal law enforcement agencies. 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. (e) Notwithstanding any other law, a California law enforcement agency shall not transfer an individual to federal immigration authorities for purposes of immigration enforcement or detain an individual at the request of federal immigration authorities for purposes of immigration enforcement absent a judicial warrant or judicial probable cause determination, except as provided in paragraph (5) of subdivision (a). This subdivision does not limit the scope of subdivision (a). (0 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 pursuant to Sections 1373 and 1644 of Title 8 of the United States Code. 7284.8. The Attorney General, by April 1, 2018, in consultation with the appropriate stakeholders, shall publish model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law at public schools, public libraries, health facilities operated by the state or a political subdivision of the state, courthouses, Division of Labor Standards Enforcement facilities, and shelters, and ensuring that they remain safe and accessible to all California residents, regardless of immigration status. All public schools, health facilities operated by the state or a political subdivision of the state, and courthouses shall implement the model policy, or an equivalent policy. All other organizations and entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California, are encouraged to adopt the model policy. 7284.10. 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. 16-9 SEC. 2. Section 11369 of the Health and Safety Code is repealed. 9 WheR theFe is reaSOR to believe that aRY pePSGR aFrested for a vielatiOR Of SeGtm()R 11350, 11351 SEC. 3. Section 3058.10 is added to the Penal Code, to read: 3058.10. (a) The Board of Parole Hearings, with respect to inmates sentenced pursuant to subdivision (b) of Section 1168, or the Department of Corrections and Rehabilitation, with respect to inmates sentenced pursuant to Section 1170, shall notify United States Immigration and Customs Enforcement of the scheduled release on parole or postrelease community supervision, or rerelease following a period of confinement pursuant to a parole revocation without a new commitment, of all persons confined to state prison serving a current term for the conviction of, or who have a prior conviction for, a violent felony listed in subdivision (c) of Section 667.5 or a serious felony listed in subdivision (c) of Section 1192.7. (b) The notification shall be made at least 60 days prior to the scheduled release date or as soon as practicable if notification cannot be provided at least 60 days prior to release. The only nonpublicly available personal information that the notification may include is the name of the person who is scheduled to be released and the scheduled date of release. SEC. 4. If the Commission on State Mandates determines that this act contains 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. 16-10