HOUSE DOCKET, NO. 4603        FILED ON: 2/14/2018

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No.         

The Commonwealth of Massachusetts

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PRESENTED BY:

Juana B. Matias

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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 relative to the Commonwealth's obligation to preserve public safety for all Massachusetts residents.

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PETITION OF:

HOUSE DOCKET, NO. 4603        FILED ON: 2/14/2018

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No.         

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to the Commonwealth's obligation to preserve public safety for all Massachusetts residents.

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. This act shall be known and may be cited as the “C.O.P.P.S Act”.

SECTION 2. Chapter 126 of the General Laws is hereby amended by inserting after section 39 the following section:-

Section 40. Definitions

As used in sections 40 to 43, inclusive, the following words shall have the following meanings, unless the context clearly requires otherwise:

“Administrative warrant”, a warrant, notice to appear, removal order, or warrant of deportation, issued by an agent of a federal agency charged with the enforcement of immigration laws or the security of the borders, including Immigration and Customs Enforcement and Customs and Border Protection. An administrative warrant is not one issued by a judicial officer.

“Civil immigration detainer request”, a request, including one using federal form I-247A, I-247D or I-247N, issued by a federal immigration officer authorized under 8 C.F.R. section 287.7 or by any other authorized federal immigration officer directed to a local, state or federal law enforcement official, whereby it requests the law enforcement official to keep the individual in police custody for a period up to 48 hours beyond the time when the he/she would otherwise be released in order to give federal immigration officials additional time to take potentially take custody of the individual.

“United States Department of Homeland Security” or “DHS”, the United States Department of Homeland Security and its component agencies, including Immigration and Customs Enforcement, Enforcement and Removal Operations, Homeland Security Investigations, the former Immigration and Naturalization Service, Customs and Border Protection, and any other federal agency charged with the enforcement of immigration laws.

“Immigration enforcement”, any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal immigration law. Such purposes do not include verification of an applicant’s eligibility for state or federal programs or services.

“Limited English proficient”, individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English.

“Law enforcement agency”, police departments of political subdivisions of the Commonwealth, sheriffs’ departments, houses of correction, courts, the Massachusetts State Police, the Environmental Police, the Massachusetts Department of Corrections, the Massachusetts Probation Service, the Office of Community Corrections, and the Massachusetts Trial Court Community Service Program, school, college and university campus police, and any other entity in the commonwealth, other than federal agencies, that are charged with the enforcement of laws, the operation of jails or prisons, or the custody of detained persons.

“Released from local custody”, when a person may be released from the custody of a Massachusetts law enforcement agency because any of the following conditions has occurred:

(a) Criminal charges against the person have been dropped or dismissed;

(b) The person has been acquitted of criminal charges filed against the person;

(c) The person has served the time required for the person’s sentence;

(d) The person has posted a bail or bond, or has been released on the person’s own recognizance;

(e) The person has been referred to pre-trial diversion services;

(f) The person has been sentenced to an alternative to incarceration, including a rehabilitation facility;

(g) The person has been released from custody under probation; or

(h) The person is otherwise eligible for release under state or local law.

“Serious Violent Crime”, any crime punishable by imprisonment in the State Prison that (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, arson or kidnapping; or (iii) involves the use of explosives.

SECTION 3. Chapter 126 of the General Laws is hereby amended by inserting after section 40 the following section:-

Section 41. Standards for Communicating and Interacting with Federal Immigration Enforcement Agencies

(1) No officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or any political subdivision thereof, shall use funds, police lockups, detention beds, or personnel  for purposes related solely to immigration enforcement, including providing courtesy booking to the United States Department of Homeland Security unless the person in question is being booked on a Massachusetts statutory violation; provided, however, that nothing in this subsection shall prevent a law enforcement agency from communicating with the United States Department of Homeland Security as set forth at Section 41 (10). Nothing in this subsection shall prohibit Houses of Correction from entering into Inter-Governmental Service Agreements with the United States Department of Homeland Security in which persons in Immigration and Customs Enforcement custody are housed at the House of Correction and the United States Department of Homeland Security pays a daily fee for each person detained there.

(2) No law enforcement agency shall inquire about a person's immigration status, unless such information is required by law, or is an element in a crime for which the law enforcement agency is investigating the person.

(3) Neither a law enforcement agency nor the Massachusetts Registry of Motor Vehicles shall make any information in its databases or other record-keeping systems available to any entity for enforcement of any federal program requiring registration of persons on the basis of race, gender, sexual orientation, religion, or national or ethnic origin. Any agreements inconsistent with this section are null and void; provided, however, that nothing in this subsection shall prohibit or restrain a law enforcement agency or the Massachusetts Registry of Motor Vehicles from sending to, or receiving from, any local, state, or federal agency, information regarding citizenship or immigration status, consistent with 8 U.S.C. section 1373.

(4) No officer or employee of a law enforcement agency shall arrest or detain an individual prior to an arrest, solely for immigration enforcement purposes or solely on the basis of a civil immigration detainer request or an administrative warrant; provided, however, that nothing in this subsection shall prevent an officer or employee of a law enforcement agency from arresting or detaining a person in the course of a criminal investigation or prosecution supported by probable cause that the person has committed a crime, consistent with constitutional standards applicable to all people in the commonwealth.

(5) No sworn officer of any law enforcement agency as defined in Section 40 of this Chapter shall effectuate an arrest or continue to detain a person based solely for federal civil immigration related purposes or solely on the basis of a civil immigration detainer request or an administrative warrant, once that person has been released from law enforcement  custody by virtue of the bail administration process as outlined in Chapter 276 of the general laws. 

Notwithstanding the preceding paragraph, a person, who has been arrested by a sworn officer of a law enforcement agency for a Massachusetts statutory violation of the law or by the authority of a judicial warrant then in full force and effect, whereby that law enforcement agency subsequently receives an immigration detainer request resulting from that initial arrest, such person shall not be admitted to bail any time sooner than six (6) hours after the receipt of the immigration detainer request, except by a judge in open court, if the individual has been so arrested for any terrorist related activity as part of an ongoing federal joint terrorism task force investigation or has been convicted of any of the following offenses:

1.Any conviction for a serious violent crime as defined in Section 40 of this chapter;

2.Any conviction for any sexual assault, sexual abuse or sexual exploitation related offenses;

3.Any conviction of any offense which has the element of active participation in a criminal street gang, as defined in 18 U.S.C Section 521(a) or Massachusetts general laws chapter 265 Section 44;

4.Any conviction of any firearm related offenses;

5.Any conviction of any human trafficking offenses as defined in [federal statute in US Code] or Chapter 265 Sections 49-51;

6.Any conviction of any drug trafficking offenses;

7.Any conviction  for any domestic violence offense if the current arrest is for a domestic violence offense;

Provided, however, that under no such circumstances shall such detention exceed the period of six (6) hours from the time when such detainer was initially received by the law enforcement agency that effectuated the independent arrest for the Massachusetts statutory violation of the law or pursuant to a judicial warrant then in full force and effect.

Nothing in this subsection shall prevent an officer or employee of a law enforcement agency from continuing to detain a person in the course of a criminal investigation or prosecution supported by probable cause that the person committed a crime, consistent with constitutional standards applicable to all people in the commonwealth.

(6) No officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or any political subdivision thereof shall perform the functions of an immigration officer, whether pursuant to 8 U.S.C. section 1357(g) or any other law, regulation, or policy, whether formal or informal. Any agreements inconsistent with this section are null and void.

(7) The presence of a civil immigration detainer request or administrative warrant shall not be considered in any bail determination.

(8) An interview between a United States Department of Homeland Security agent and a person in the custody of a law enforcement agency conducted for immigration enforcement purposes shall take place only if the person in custody has given consent. Before the interview, the law enforcement agency shall provide the person in custody with a written consent form that explains the purpose of the interview, that the interview is voluntary, and that the person may decline to be interviewed or may choose to be interviewed only with the person’s attorney present; provided, however, that a law enforcement agency shall not be responsible for the payment of the person’s attorney’s fees and expenses. If the person in custody declines the interview, no law enforcement agency shall allow DHS agents to conduct the interview. If the person indicates that he or she wishes to have an attorney present, the law enforcement agency shall allow the person to contact an attorney and shall permit such attorney to meet with the detained person and to be present during the interview, and in the case that no attorney can be present, the interview shall not take place.; provided, however, that the law enforcement agency shall not be responsible for the payment of the person’s attorney fees and expenses. The written consent form shall be available in English, Arabic, Spanish, Portuguese, Chinese, Haitian Creole, Vietnamese, and Khmer or Cambodian. If the person is limited English proficient, the law enforcement agency shall make best efforts to provide interpretive services.

(9) If any person is subject to a civil immigration detainer request or an administrative warrant, the law enforcement agency having custody of the person shall provide the person with a copy of the civil immigration detainer request and/or the administrative warrant, and any other documentation pertaining to the person’s case that is presented to the law enforcement agency by United States Department of Homeland Security agents.

(10) No law enforcement agency shall provide or allow DHS agents access to a list of persons in the law enforcement agency’s custody unless such a list is a public record, as defined in section seven, twenty-sixth of chapter four.  No law enforcement agency shall provide DHS agents information regarding the future release date of a person in its custody, including in response to a civil immigration detainer request, unless the person in custody has been arrested for any terrorist related activity as part of an ongoing federal joint terrorism task force investigation or has been convicted of any of the following offenses:

1.Any conviction for a serious violent crime as defined in Section 40 of this chapter;

2.Any conviction for any sexual assault, sexual abuse or sexual exploitation related offenses;

3.Any conviction of any offense which has the element of active participation in a criminal street gang, as defined in 18 U.S.C Section 521(a) or Massachusetts general laws chapter 265 Section 44;

4.Any conviction of any firearm related offenses;

5.Any conviction of any human trafficking offenses as defined in [federal statute in US Code] or Chapter 265 Sections 49-51;

6.Any conviction of any drug trafficking offenses;

7.Any conviction  for any domestic violence offense if the current arrest is for a domestic violence offense.

Notwithstanding, a law enforcement agency may inform DHS agents that a person has been released from the agency’s custody, and a law enforcement agency may communicate with DHS about a person who is not in custody but is the subject of an ongoing investigation for a crime not relating to immigration enforcement. Nothing in this section shall prohibit or restrain any state or local agency from sending to, or receiving from, any local, state, or federal agency, information regarding citizenship or immigration status, consistent with 8 U.S.C. section 1373.

SECTION 4. Chapter 126 of the General Laws is hereby amended by inserting after section 41 the following section:-

Section 42. Transport of persons subject to civil immigration detainer requests or administrative warrants

Law enforcement officials shall not transport a person who is in local custody to any facility in order to place the person into United States of Homeland Security custody; provided, however, that nothing in this section shall be construed as prohibiting a law enforcement agency from transporting a person who is in United States Homeland Security custody. Nothing in this section shall be construed as limiting or changing the duties of Sheriffs in section 24 of chapter 37, except that United States Department of Homeland Security facilities or United States Department of Homeland Security custody shall not be considered non-correctional for the purposes of subsection (c) of that section.

SECTION 5. Chapter 126 of the General Laws is hereby amended by inserting after section 42 the following section:-

Section 43. Data Collection

All law enforcement agencies shall retain copies of all immigration detainer requests and administrative warrants received along with any accompanying information, and record the following for any person subject to either one: race, gender, date and time of arrest, arrest charges, date and time of receipt of a civil immigration request or administrative warrant; date and time that the person was taken into custody by federal immigration agents; immigration or criminal history known or marked on the civil immigration detainer request form; whether the civil immigration detainer request was accompanied by additional documentation regarding immigration status or proceedings; and, whether a copy of the forms were provided to the person.

All law enforcement agencies that receive civil immigration detainer requests shall report all information collected pursuant to this section to the civil rights division of the attorney general’s office every 6 months. Such information, with the exception of criminal offender record information, as defined in section 167 of chapter 6, shall be a public record, within the meaning of section 3 of chapter 66 and clause Twenty-sixth of section 7 of chapter 4.

SECTION 6. Severability

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.