SENATE DOCKET, NO. 1116        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1135

The Commonwealth of Massachusetts

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PRESENTED BY:

James B. Eldridge

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to restore community trust in Massachusetts law enforcement.

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PETITION OF:

SENATE DOCKET, NO. 1116        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1135

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act to restore community trust in Massachusetts law enforcement.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  Chapter 126 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting the following new section:-

Section 40.

(a) Definitions

For purposes of this chapter, the following terms have the following meanings:

(1) “Administrative warrant” means an immigration warrant, notice to appear, removal order, or warrant of deportation, issued by ICE, Customs and Border Protection, or a successor or similar federal agency charged with enforcement of civil immigration laws.

(2) “Citizenship or immigration status” means all matters regarding questions of citizenship of the United States or any other country, the authority to reside in or otherwise be present in the United States, the time or manner of a person's entry into the United States, or another civil immigration matter enforced by the Department of Homeland Security or other federal agency charged with the enforcement of civil immigration laws.

(3) “Commonwealth” shall include the territory and government of the state of Massachusetts and any county, city, or municipal governing bodies or political subdivisions therein.

(4) “Custodial Law Enforcement Agency” means the local law enforcement agency having custody of the person against whom a detainer is lodged.

(5) “ICE” means the United States Immigration and Customs Enforcement Agency, and includes the former Immigration and Naturalization Service, Customs and Border Protection, and any successor agency charged with the enforcement of civil immigration laws.

(6) “Immigration detainer” means a written request issued by ICE, Customs and Border Protection, former INS, or any other federal agency charged with the enforcement of civil immigration laws, to another federal, state, or local law enforcement agency to provide notice of release and to detain an individual based on an inquiry into immigration status or an alleged violation of a civil immigration law, including detainers issued pursuant to 8 C.F.R. § 287.7 and 8 C.F.R. § 236.1, and on DHS Form I-247 “Immigration Detainer – Notice of Action.”

(7) “Inmate” means anyone in the custody of a law enforcement agency as defined under (h) of this section, and does not include individuals in the custody of Immigration and Customs Enforcement.

(8) “Law Enforcement Agency" means an agency in Massachusetts charged with enforcement of state, county, municipal, or federal laws, or with managing custody of detained persons in the Commonwealth, and includes municipal police departments, sheriffs’ departments, state police, campus police, and the Massachusetts Department of Corrections.

(9) “State correctional institution” means a penal institution managed by the Massachusetts Department of Corrections.

(10)  “Law enforcement official” means any officer of a state, county, or municipal 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.  This includes “police officers” as defined in Section 1 of chapter 90C.

(b) Standards for Responding to Immigration Detainers

(1) There being no legal authority upon which the federal government may compel an expenditure of Commonwealth resources to comply with an immigration detainer, there shall be no expenditure of any Commonwealth resources or effort by law enforcement officials for this purpose, except as expressly provided within this Chapter.

(2) A law enforcement official or agency in the Commonwealth may detain an inmate pursuant to an immigration detainer, provided that:

(i) Such detention is permitted by local, state and federal law and the Massachusetts and United States Constitutions; and

(ii) The inmate has not been ordered released by the criminal justice system, pursuant to:

(A) a finding of not guilty;

(B) dismissal of charges; or

(C) granting release pending trial by a bail commissioner or clerk, judge, or magistrate, as soon as the inmate has met any imposed conditions for release; and

(iii) The following conditions are met:

(A) The subject of the detainer is over 18 years of age;

(B) The inmate has been convicted and confined to a state correctional institution for five years for an offense enumerated in chapter 265;

(C) The immigration detainer is accompanied by a prior order of removal for the subject of the detainer, or evidence that DHS has filed a Form I-862 Notice to Appear with the immigration court; and

(D) The custodial law enforcement agency has an agreement with the federal government for the reimbursement of all costs associated with the further detention of that individual.

(3) No inmate subject to an immigration detainer shall be denied bail solely on the basis of that detainer.  Such an inmate shall still be subject to the custody provisions of subsection (b)(2) of this act.

(4) Law enforcement agencies shall not make inmates available for ICE interviews, in person or over the telephone or videoconference, unless the inmate is provided an opportunity to have counsel present during the interview and signs a written consent form in a language the inmate understands, that explains who the interviewer is and the possible legal consequences of providing information to ICE.  Notice of the interview request shall be provided in a language or manner that the inmate understands.  Inmates who are hospitalized or on suicide watch shall not be made available for ICE interviews.

(5) If any inmate is subject to an immigration detainer or a Notice to Appear in immigration court, the custodial law enforcement agency shall provide notice in writing to that inmate of the nature and substance of the detainer or notice, immediately following the receipt of that detainer or Notice to Appear.  Such notice shall be provided in a language or manner that the inmate understands.

(6) Unless ICE agents provide a criminal warrant, or a law enforcement agency has a legitimate law enforcement purpose that is not related to the enforcement of civil immigration laws, law enforcement agencies shall not provide booking lists to ICE, or communicate with ICE regarding individuals’ incarceration status or release dates.  Nothing in this section shall limit the exchange of information regarding citizenship or immigration status as permitted by federal law.

(c) Administrative Arrests

There being no legal authority for law enforcement officials in the Commonwealth to enforce federal civil immigration laws, law enforcement officials shall not make arrests or detain any individual based on an administrative immigration warrant in the National Crime Information Center (NCIC) database.

(d) Transfers of custody

Law enforcement officials are not responsible for the enforcement of federal immigration laws and shall not arrest or transport inmates for civil immigration enforcement purposes or on the basis of a civil immigration detainer, unless the inmate has been formally placed in federal immigration custody under a contract with the Department of Homeland Security, or in accordance with section 2 of this act.  Nothing in this section shall be construed as limiting or changing the duties of Sheriffs regarding transportation in section 24 of chapter 37, except that ICE facilities or ICE custody shall not be considered non-correctional for the purposes of subsection (c) of that section.

(e) Data Collection

(1) All law enforcement agencies shall record the following for any inmates subject to an immigration detainer: race, gender, place of birth, date and time of arrest, arrest charges, date and time of receipt of detainer, immigration or criminal history known or marked on the detainer form, whether the detainer was accompanied by additional documentation regarding immigration status or proceedings, whether a copy of the detainer was provided to the inmate, and, if applicable, the date and time that ICE came to take custody of the inmate.

(2) All law enforcement agencies that receive detainer requests shall report the information in subsection (a) yearly to the Civil Rights Division of the Attorney General’s Office.  Such information, with the exception of the name of the individual named in the detainer, shall be a public record, within the meaning of section 3 of chapter 66.