Amended in Senate April 11, 2016

Senate BillNo. 1289


Introduced by Senator Lara

February 19, 2016


begin deleteAn act to add Sections 1670.9 and 1670.91 to the Civil Code, relating to immigration. end deletebegin insertAn act to add Sections 1670.9 and 1670.91 to the Civil Code, relating to immigration.end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 1289, as amended, Lara. Law enforcement: immigration.

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Existing law generally regulates formation and enforcement of contracts, including what constitutes an unlawful contract. Under existing law, a contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals.

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Existing law authorizes a county board of supervisors on behalf of its sheriff, and a legislative body of a city on behalf of its chief of police, to contract to provide supplemental law enforcement services to private individuals, private entities, and private corporations in specified circumstances and subject to certain conditions.

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This bill would prohibit the board of supervisors of a county, or a legislative body of a city or a city and county, or a local law enforcement entity from entering into or renewing a contract, or modifying a contract to extend the length of the contract, with a private corporation, contractor, or vendor to detain immigrants for profit, on behalf of the United States Department of Homeland Security, the United States Marshals Service, or the federal Office of Refugee Resettlement.

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Existing law requires the Board of State and Community Corrections to establish minimum standards for local correctional facilities, as specified.

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This bill would require an immigrant detention facility that chooses to enter into a contract to detain immigrants in civil immigration proceedings to detain immigrants only pursuant to a contract that requires the entity contracting with the Department of Homeland Security or other federal agency to adhere to specified standards.

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Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of California are free and equal no matter their national origin, citizenship, or immigration status and are entitled to full and equal accommodations, facilities, and privileges in all business establishments of every kind. Persons denied their rights under this act may obtain specified remedies, including treble damages.

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This bill would provide that an immigrant detention facility, as defined, an agent thereof, or a person acting on its behalf, shall not deprive an immigrant of specified rights, including access to an attorney or other authorized person, medical care, freedom from harm or harassment, or privacy. The bill would require an immigrant detention facility to ensure appropriate medical treatment when a detainee is transferred and prohibit involuntary placement of a detainee in segregated housing because of his or her actual or perceived gender, gender identity, gender expression, or sexual orientation. The bill would also require an immigration detention facility to have a Legal Orientation Program, as specified, or other similar program to provide comprehensive explanations about immigration court procedure and other legal information to unrepresented immigration detainees.

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This bill would authorize the Attorney General or any district attorney or city attorney to bring a civil action against an immigrant detention facility, an agent thereof, or a person acting on its behalf that violates a detainee’s rights, as specified. The bill would also authorize a person whose rights have been violated, as described above, or under the Unruh Civil Rights Act, to bring a civil action for damages, injunctive relief, and other equitable relief.

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The bill would provide that its provisions are severable.

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Existing law generally regulates formation and enforcement of contracts, including what constitutes an unlawful contract. Under existing law, a contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, though not expressly prohibited, or otherwise contrary to good morals.

end delete
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Existing law authorizes a county board of supervisors on behalf of its sheriff, and a legislative body of a city on behalf of its chief of police, to contract to provide supplemental law enforcement services to private individuals, private entities, and private corporations in specified circumstances and subject to certain conditions.

end delete
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This bill would prohibit the board of supervisors or sheriff of a county or a legislative body or chief of police of a city or a city and county from entering into or renewing a contract to detain immigrants for profit, on behalf of the Department of Homeland Security, with a private corporation, contractor, or vendor.

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Existing law requires the Board of State and Community Corrections to establish minimum standards for local correctional facilities, as specified.

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Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of California are free and equal no matter their national origin, citizenship, or immigration status and are entitled to full and equal accommodations, facilities, and privileges.

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This bill would require a city, county, or city and county that holds immigrants in a local correctional facility or local detention facility on behalf of the Department of Homeland Security to do so only pursuant to a contract that requires it to adhere to the standards for detaining those individuals described in the 2011 Operations Manual ICE Performance-Based National Detention Standards.

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This bill would specify that no immigrant detention facility or agent thereof shall deprive an immigrant of specified rights, including access to an attorney, medication, or freedom from harassment. The bill would require an immigrant detention facility to ensure appropriate medical treatment when a detainee is transferred and prohibit the use of solitary confinement to regularly house or detain an individual because he or she is a member of the lesbian, gay, bisexual, transgender, or queer communities. Because the bill would require local agencies to perform additional duties, the bill would impose a state-mandated local program.

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This bill would authorize the Attorney General or any district attorney or city attorney to bring a civil action against an immigrant detention facility or an agent thereof that violates a detainee’s rights, as specified. The bill would also authorize a person whose rights have been violated, as described above, or under the Unruh Civil Rights Act, to bring a civil action for damages, injunctive relief, and other equitable relief against an immigrant detention facility or agent thereof.

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The bill would provide that its provisions are severable.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: begin deleteyes end deletebegin insertnoend insert.

The people of the State of California do enact as follows:

P4    1begin insert

begin insertSECTION 1.end insert  

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The Legislature finds and declares the following:

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2
(a) In keeping with its obligation to safeguard the humane and
3just treatment of all individuals located in California, it is the
4intent of the Legislature that this bill declare the state’s intolerance
5to profiting from the incarceration of Californians held in
6immigration detention and its desire to ensure the just and human
7treatment of our most vulnerable populations.

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8
(b) It is the further intent of the Legislature to ensure the uniform
9treatment of individuals detained within immigration detention
10facilities, operating in California, in a manner that meets or
11exceeds the federal national standards and other applicable legal
12requirements.

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13begin insert

begin insertSEC. 2.end insert  

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begin insertSection 1670.9 is added to the end insertbegin insertCivil Codeend insertbegin insert, to read:end insert

begin insert
14

begin insert1670.9.end insert  

(a) The board of supervisors of a county, or a
15legislative body of a city or of a city and county, or a local law
16enforcement entity shall not enter into or renew a contract, or
17modify a contract to extend the length of the contract, with a
18private corporation, contractor, or vendor to detain immigrants
19for profit, on behalf of the United States Department of Homeland
20Security, the United States Marshals Service, or the federal Office
21of Refugee Resettlement.

22
(b) If an immigrant detention facility chooses to enter into a
23contract to detain immigrants in civil immigration proceedings,
24it shall detain immigrants only pursuant to a contract that requires
25the entity contracting with the Department of Homeland Security
26or other federal agency to adhere to the standards for detaining
27those individuals described in the 2011 Operations Manual ICE
28Performance-Based National Detention Standards as corrected
P5    1and clarified in February 2013 and ICE Directive 11065.1 (Review
2of the Use of Segregation for ICE Detainees).

end insert
3begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 1670.91 is added to the end insertbegin insertCivil Codeend insertbegin insert, to read:end insert

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4

begin insert1670.91.end insert  

(a) An immigrant detention facility, an agent of an
5immigrant detention facility, or a person acting on behalf of an
6immigrant detention facility, shall not deprive any immigrant
7detainee on behalf of the Department of Homeland Security access
8to an attorney or any other person authorized by the Board of
9Immigration Appeals under Section 292.2 of Title 8 of the Code
10of Federal Regulations, access to a translator or interpretation
11services, medical care, freedom from harm or harassment, or
12privacy.

13
(1) Medical care includes, but is not limited to, HIV medication
14and transition-related health care.

15
(2) Medical care shall not be denied or delayed on the basis
16that the immigrant is likely to be released or deported.

17
(b) If an immigrant detention facility, or agent of an immigrant
18detention facility, or person acting on behalf of an immigrant
19detention facility, deprives any immigrant detainee of his or her
20rights as described in subdivision (a), (g), (h), or (i), or rights
21under the 2011 Operations Manual ICE Performance-Based
22National Detention Standards as corrected and clarified in
23February 2013, or ICE Directive 11065.1 (Review of Use of
24Segregation for ICE Detainees), the following actions may be
25taken:

26
(1) The Attorney General, or any district attorney or city
27attorney, may bring a civil action for injunctive and other
28appropriate equitable relief in the name of the people of the State
29of California. An action brought by the Attorney General, any
30district attorney, or any city attorney may also seek a civil penalty
31of twenty-five thousand dollars ($25,000). If this civil penalty is
32requested, it shall be assessed individually against each person
33who is determined to have violated this section, and the penalty
34shall be awarded to each individual whose rights under this section
35are determined to have been violated.

36
(2) Any individual who has been deprived of his or her rights
37may bring a civil action for damages, including, but not limited
38to, damages under Section 52, injunctive relief, and other
39appropriate equitable relief, including appropriate equitable and
P6    1declaratory relief, for failure to comply with subdivision (a), (g),
2(h), or (i).

3
(c) Nothing in this section shall prohibit an immigrant detention
4facility from providing more rights than are required under the
52011 Operations Manual ICE Performance-Based National
6Detention Standards as corrected and clarified in February 2013
7or ICE Directive 11065.1 (Review of the Use of Segregation for
8ICE Detainees).

9
(d) An action brought pursuant to this section is independent
10of any other action, remedy, or procedure that may be available
11to an individual under any other provision of law.

12
(e) In addition to any damages, injunction, or other equitable
13relief awarded in an action brought pursuant to subdivision (b),
14the court may award the petitioner or plaintiff reasonable
15attorney’s fees and costs.

16
(f) For purposes of this section, “immigrant detention facility”
17means a facility that chooses to enter into a contract to detain
18immigrants for civil immigration proceedings.

19
(g) When an immigrant detainee is transferred, the immigrant
20detention facility shall do all of the following:

21
(1) Ensure that all medical records of the detainee are promptly
22transferred to ICE at the time of transfer, or promptly provided
23to the facility to which the detainee is transferred.

24
(2) Ensure that all detainees receive all medications needed
25while in transit.

26
(3) Ensure that a detainee’s treatment plan is received by the
27medical personnel at the facility to which the detainee is being
28transferred.

29
(4) Ensure that there is no delay, disruption, or denial of medical
30treatment after or before detainee transfer.

31
(h) An immigration detainee shall not be involuntarily placed
32in segregated housing in an immigration detention facility because
33of his or her actual or perceived gender, gender identity, gender
34expression, or sexual orientation, as defined in Section 422.56 of
35the Penal Code.

36
(i) An immigration detention facility shall have a Legal
37Orientation Program (as established by the Executive Office for
38Immigration Review of the United States Department of Justice)
39or similar program to provide comprehensive explanations about
40immigration court procedure, along with other basic legal
P7    1information, to unrepresented immigration detainees. The program
2shall include an orientation on immigration removal proceedings
3and forms of relief, distribute self-help materials, provide private,
4individual consultations with unrepresented detainees to discuss
5their cases, and referrals to pro bono legal services.

6
(j) For purposes of this section, “segregated housing” means
7administrative segregation or disciplinary segregation, as defined
8in the 2011 Operations Manual ICE Performance-Based National
9Detention Standards as corrected and clarified in February 2013,
10or any other act resulting in an individual being segregated from
11the general population through prolonged physical or social
12isolation for hours, days, weeks, or years.

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begin insertSEC. 4.end insert  

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The provisions of this act are severable. If any
14provision of this act or its application is held invalid, that invalidity
15shall not affect other provisions or applications that can be given
16effect without the invalid provision or application.

end insert
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17

SECTION 1.  

Section 1670.9 is added to the Civil Code, to
18read:

19

1670.9.  

(a) The board of supervisors or sheriff of a county, or
20a legislative body or chief of police of a city or of a city and county,
21is prohibited from entering into or renewing a contract to detain
22immigrants for profit, on behalf of the Department of Homeland
23Security, with a private corporation, contractor, or vendor.

24(b) A city, county, or city and county that holds immigrants in
25a local correctional facility or local detention facility on behalf of
26the Department of Homeland Security shall do so only pursuant
27to a contract that requires its adherence to the standards for
28detaining these individuals described in the 2011 Operations
29Manual ICE Performance-Based National Detention Standards as
30corrected and clarified in February 2013.

31

SEC. 2.  

Section 1670.91 is added to the Civil Code, to read:

32

1670.91.  

(a) No immigrant detention facility, or agent of an
33immigrant detention facility, or person acting on behalf of an
34immigrant detention facility, shall deprive any immigrant detained
35on behalf of the Department of Homeland Security access to an
36attorney, HIV medication or other medication, freedom from harm
37or harassment, privacy, or accommodations as a result of being a
38member of the lesbian, gay, bisexual, transgender, or queer
39communities.

P8    1(b) If an immigrant detention facility, or agent of an immigrant
2detention facility, or person acting on behalf of an immigrant
3detention facility, deprives any immigrant detained on behalf of
4the Department of Homeland Security their rights as described in
5subdivision (a), (g), or (h), or rights under the 2011 Operations
6Manual ICE Performance-Based National Detention Standards as
7corrected and clarified in February 2013, the Attorney General, or
8any district attorney or city attorney, may bring a civil action for
9injunctive and other appropriate equitable relief in the name of the
10people of the State of California. An action brought by the Attorney
11General, any district attorney, or any city attorney may also seek
12a civil penalty of twenty-five thousand dollars ($25,000). If this
13civil penalty is requested, it shall be assessed individually against
14each person who is determined to have violated this section, and
15the penalty shall be awarded to each individual whose rights under
16this section are determined to have been violated.

17(c) Any individual who has been deprived of his or her rights
18under subdivision (a), (g), or (h), or rights under the 2011
19Operations Manual ICE Performance-Based National Detention
20Standards as corrected and clarified in February 2013, may bring
21a civil action for damages, including, but not limited to, damages
22under Section 52, injunctive relief, and other appropriate equitable
23relief, including appropriate equitable and declaratory relief, to
24eliminate a pattern or practice of conduct as described in
25subdivision (a), (g), or (h).

26(d) An action brought pursuant to this section is independent of
27any other action, remedy, or procedure that may be available to
28an individual under any other provision of law.

29(e) In addition to any damages, injunction, or other equitable
30relief awarded in an action brought pursuant to subdivision (b),
31the court may award the petitioner or plaintiff reasonable attorney’s
32fees.

33(f) For purposes of this section, “immigrant detention facility”
34means a facility that detains immigrants on behalf of the
35 Department of Homeland Security pursuant to an agreement:

36(1) Between the Department of Homeland Security and a board
37of supervisors of a county, or a legislative body of a city or of a
38city and county, or a local law enforcement entity; or

P9    1(2) Between the board of supervisors of a county, or a legislative
2body of a city or of a city and county, or local law enforcement
3entity with a private corporation, contractor, or private vendor.

4(g) When an immigrant detention facility transfers an immigrant
5detainee, that immigrant detention facility must do all of the
6following:

7(1) Ensure that all medical records of the detainee are received
8by the facility to which the detainee is transferred at the time of
9transfer.

10(2) Ensure that all detainees receive all medications needed
11while in transit.

12(3) Ensure that a detainee’s treatment plan is received by the
13medical personnel at the facility to which the detainee is being
14transferred.

15(4) Ensure that there is no delay or disruption in medical
16treatment, after or before detainee transfer.

17(h) Solitary confinement shall not be used to regularly house or
18detain an individual because he or she is a member of the lesbian,
19gay, bisexual, transgender, or queer communities.

20

SEC. 3.  

The provisions of this act are severable. If any
21provision of this act or its application is held invalid, that invalidity
22shall not affect other provisions or applications that can be given
23effect without the invalid provision or application.

24

SEC. 4.  

If the Commission on State Mandates determines that
25this act contains costs mandated by the state, reimbursement to
26local agencies and school districts for those costs shall be made
27pursuant to Part 7 (commencing with Section 17500) of Division
284 of Title 2 of the Government Code.

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