Budget Amendment ID: FY2019-S4-1136.1-R2

2nd Redraft Further EPS 1136.1

Preventing discrimination

Messrs. Tarr, O'Connor and Fattman moved that the amendment be amended By striking the underlying amendment in its entirety and inserting in place thereof the following:-

SECTION XX. Chapter 30 of the General Laws is hereby amended by adding the following section:-

Section 66. (a) Under no circumstances shall the commonwealth, any political subdivision thereof, or any employee or agent of the commonwealth or any of its political subdivisions, establish any operation or program that requires, or has the effect of causing, persons to register or check in based in whole or in part on their religion, national origin, nationality, citizenship, race, ethnicity, gender, gender identity, sexual orientation or age, or maintain any records system, government file or database for the purpose of registering persons based in whole or in part on those categories with the exception

(b) In the event that any federal government operation or program requires, or has the effect of causing, persons to register or check in based in whole or in part on their religion, national origin, nationality, citizenship, race, ethnicity, gender, gender identity, sexual orientation or age, including but not limited to any such operation or program created pursuant to 8 United States Code, sections 1302(a) and 1303(a):

(1) no resources of the commonwealth or any political subdivision thereof shall be expended in the enforcement or implementation of such registry or check-in program;

(2) no employee or agent of the commonwealth or any of its political subdivisions shall access, or seek to access, any information maintained pursuant to such registry or check-in program; and

(3) no employee or agent of the commonwealth or any of its political subdivisions shall provide or disclose or offer to provide or disclose information to, or respond to a request for information from, such registry or check-in program.

(c) This section shall not apply to any government operation or program that: (1) merely collects and compiles data about nationals of a foreign country entering or exiting the United States; or (2) issues visas, grants United States citizenship, confers an immigration benefit, or temporarily or permanently protects noncitizens from removal; or (3) for the federal selective service program as established by the selective training and service act of 1940.

(d) Nothing in this section shall prohibit or restrain the commonwealth, any political subdivision thereof, or any employee or agent of the commonwealth or any of its political subdivisions, from sending to, or receiving from, any local, state, or federal agency, information regarding citizenship or immigration status, consistent with Section 1373 of Title 8 of the United States Code.

SECTION XX. Chapter 126 of the General Laws is hereby amended by adding the following section:-

Section 40. Agreements to Enforce Federal Law.

No officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or any political subdivision thereof, with the exception of the department of correction and sheriff’s department, or a member of a law enforcement agency who has lawful custody of a person based on (1)  a written request from United States Immigration and Customs Enforcement requesting detention of such person on the grounds that there is probable cause that such person is a removable alien and (2) an administrative warrant for arrest or warrant of removal/deportation, detain such person for a reasonable period of time after such person would otherwise be released from custody in order to transfer custody of such person to United States Immigration and Customs Enforcement, 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 but shall not prohibit or restrain the commonwealth or any of its political subdivisions from sending to, or receiving from, any local, state or federal agency, information regarding citizenship or immigration status, consistent with section 1373 of title 8 of the United States Code. No officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or any political subdivision thereof, with the exception of the department of correction or sheriff’s office, shall enter into such an agreement and, if such an agreement has been entered into, the officer or employee shall terminate the agreement pursuant to the terms of the agreement.

SECTION XX. Chapter 147 of the General Laws is hereby amended by adding the following section:-

Section 63. (a) As used in this section, the following words shall have the following meanings, unless the context clearly requires otherwise:

“Civil immigration detainer request”, any request by a federal immigration officer authorized under 8 C.F.R. section 287.7 or by any other authorized party, including any request made using federal form I-247A, I-247D or I-247N, asking a non-federal law enforcement agency, officer or employee to maintain custody of a person once that person is released from local custody or to notify the United States Department of Homeland Security of the person's release.

“Law enforcement agency”, any state, municipal, college or university police department, or program of one or more of the foregoing entities, or any other non-federal entity in the commonwealth charged with the enforcement of laws or the custody of detained persons.

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

(b) No officer or employee of a law enforcement agency, while acting under color of law, shall inquire about the immigration status of an individual unless such inquiry is required by federal or state law; provided that a judge or magistrate may make such inquiries as are necessary to adjudicate matters within their jurisdiction.

(c) Any agreement entered into between the federal government and a county sheriff shall be limited to identification of those in their custody who may not be in the country and the commonwealth legally by exchanging information with federal authorities

(d) All law enforcement agencies in the commonwealth shall, within 12 months of passage of this act, incorporate information regarding lawful and unlawful inquiries about immigration status into their regular introductory and in-service training programs. If a law enforcement agency receives a complaint or report that an officer or employee has inquired about an individual’s immigration status when such inquiry is not required by law, the agency shall investigate and take appropriate disciplinary or other action.

(e) If a law enforcement agency has in its custody a person who is the subject of a civil immigration detainer request or a non-judicial warrant, the agency shall provide them notice to their right to counsel provided, however, that the law enforcement agency shall not be responsible for the payment of the person’s attorney’s fees and expenses.  The person, and his or her attorney if the person is represented by an attorney, shall be provided a copy of such detainer request or non-judicial warrant, and any other documentation the agency possesses pertaining to the person’s immigration case.

(f) 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 to the interview by signing a 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 an attorney present. The consent form shall be prepared by the office of the attorney general and made available to law enforcement agencies in English and other languages commonly spoken in Massachusetts. The office of the attorney general may work with interested not-for-profit organizations to prepare translations of the written consent form. The law enforcement agency shall make best efforts to provide a consent form that is in a language that the person understands, and to provide interpretation if needed, to obtain the person’s informed consent.

(g) If the person in custody indicates that he or she wishes to have an attorney present for the interview, the law enforcement agency shall allow him or her to contact such attorney, 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’s fees and expenses.

SECTION __. Chapter 276 of the General Laws is hereby amended by inserting after section 20R the following section:-

Section 20S. (a) Any employee of the Commonwealth, or a public instrumentality or political subdivision thereof, who holds police powers or the powers of a sheriff or deputy sheriff, including but not limited to municipal police officers, court officers, and state troopers, and who has lawful custody of a person may, upon receipt of (1) a written request from United States Immigration and Customs Enforcement requesting detention of such person on the grounds that there is probable cause that such person is a removable alien and (2) an administrative warrant for arrest or warrant of removal/deportation, detain such person for a reasonable period of time after such person would otherwise be released from custody in order to transfer custody of such person to United States Immigration and Customs Enforcement, provided that a supervisory officer of such employee’s agency has, in accordance with a policy promulgated in accordance with subsection (c), first determined that there are specific facts indicating that the person to be detained poses a threat to public safety; and further provided that such person be provided with a copy of such written request; and further provided that in no circumstances shall such detention exceed 12 hours unless an appropriate judicial officer shall have made a probable cause determination under the procedure set forth in subsection (d).

(b) As used in subsection (a), “specific facts indicating that the person to be detained poses a threat to public safety” shall mean that, at a minimum, any of the following facts are true with respect to such person:

1. the person has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to national security;

2. the person has been charged with or convicted of an offense of which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 521(a);

3. the person has been charged with or convicted of an offense classified as a felony, other than a state or local offense for which an essential element was the person’s immigration status;

4. the person has been charged with or convicted of an aggravated felony, as defined under 8 U.S.C. § 1101(a)(43); or

5.the person has been charged with or convicted of a crime of (i) domestic violence; (ii) sexual abuse or exploitation; (iii) trafficking in persons in violation of sections 50 or 51 of chapter 265 or like violations of the law of another state, the United States or a military, territorial or Indian tribal authority; (iv) burglary; (v) unlawful possession or use of a firearm; (vi) drug distribution or trafficking; (vii) second or subsequent operating or driving under the influence; or (viii) any other offense for which the person has been sentenced to time in custody of 180 days or more.

(c)  Each agency of the Commonwealth or any public instrumentality or political subdivision of the Commonwealth that chooses to allow its employees to exercise the authority granted by subsection (a) shall promulgate a written policy designating which supervisory officers may make the determination required by subsection (a) before a person is detained and the criteria such supervisory officer shall use in making such determination.

(d) A determination of probable cause for detention shall be made by an appropriate judicial officer and promptly reduced to writing. The appropriate judicial officer shall consider any information presented by the detaining agency, whether or not known at the time of initial detention. The detaining agency shall present the information under oath or affirmation or under the pains and penalties of perjury, and may present the information orally, in person or by any other means, or in writing. If presented in writing, the information may be transmitted to the appropriate judicial officer by facsimile transmission or by electronic mail or by such other electronic means as may be found acceptable by the court. The determination of probable cause for detention shall be an ex parte proceeding. The person detained shall have no right to appear, either in person or by counsel.  If the judicial officer determines that there is not probable cause to believe the person detained is a removable alien, then the judicial officer shall order that the person be released forthwith.  Such a determination and order shall be filed in the District Court having jurisdiction over the location of the detention, together with all written information submitted by the detaining agency.  Such documents shall be filed separately from the records of criminal cases, and shall be open for inspection by the public. If a determination under this subsection is necessary, the detaining agency shall present the information necessary to obtain such determination to the appropriate judicial officer as soon as reasonably possible after the detention begins, but no later than 12 hours after the detention begins.

(e) This section shall not be construed to give rise to a private right of action and shall not be construed so as to make unlawful any arrest in this commonwealth which would otherwise be lawful.”