BILL ANALYSIS �
AB 1081
Page 1
GOVERNOR'S VETO
AB 1081 (Ammiano)
As Amended August 15, 2012
2/3 vote
-----------------------------------------------------------------
|ASSEMBLY: |47-26|(May 26, 2011) |SENATE: |24-13|(August 21, |
| | | | | |2012) |
-----------------------------------------------------------------
-----------------------------------------------------------------
|ASSEMBLY: |48-26|(August 24, | | | |
| | |2012) | | | |
-----------------------------------------------------------------
Original Committee Reference: PUB. S.
SUMMARY : Prohibits law enforcement officials from detaining an
individual based on an immigration hold when the individual is
otherwise eligible for release from criminal custody, unless
specified conditions are met.
The Senate amendments :
1)State that a law enforcement official has the discretion to
detain an individual on the basis of an immigration hold after
that individual becomes eligible for release from criminal
custody if both of the following conditions are satisfied:
a) The individual has been convicted of a serious or violent
felony according to a criminal background check or
documentation provided to the law enforcement official by the
United States (U.S.) Immigration and Customs Enforcement
(ICE) or is currently in custody for a charge of serious or
violent felony by a district attorney; and,
b) The continued detention of the individual on the basis of
the immigration hold would not violate any federal, state, or
local law, or any local policy.
2)Prohibit an individual from being detained on the basis of an
AB 1081
Page 2
immigration hold after that individual becomes eligible for
release from criminal custody, if either of the conditions set
forth above is not satisfied.
3)Define "eligible for release from criminal custody" to mean that
the individual may be released from criminal custody because one
of the following conditions have been met:
a) All criminal charges against the individual have been
dropped or dismissed;
b) The individual has been acquitted of all criminal charges
filed against him or her;
c) The individual has served all the time required for his or
her sentence;
d) The individual has posted a bond; or,
e) The individual is otherwise eligible for release under
state or local law, or local policy.
4)Define "immigration hold" to mean an immigration detainer issued
by an authorized immigration officer pursuant to federal law
that requests that the law enforcement official maintain custody
of the individual for a period not to exceed 48 hours excluding
Saturdays, Sundays and holidays, and to advise the authorized
immigration officer prior to the release of that individual.
5)Define "law enforcement official" as any local agency or officer
of a local 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.
6)Define "local agency" as any city, county, city and county,
special district, or other political subdivision of the state.
7)Define "serious felony" as any of the offenses listed in
subdivision (c) of Section 1192.7 of the Penal Code and any
AB 1081
Page 3
offense committed in another state which, if committed in
California, would be punishable as a serious felony as defined
by subdivision (c) of Section 1192.7 of the Penal Code.
8)Define "violent felony" as any of the offenses listed in
subdivision (c) of Section 667.5 of the Penal Code and any
offense committed in another state which, if committed in
California, would be punishable as a violent felony as defined
by subdivision (c) of Section 667.5 of the Penal Code.
9)Declares the findings of the Legislature that ICE's Secure
Communities program (S-Comm) shifts the burden of federal civil
immigration enforcement onto local law enforcement. To operate
the Secure Communities program, ICE relies on voluntary requests
to local law enforcement to hold individuals for additional time
beyond when they would be eligible for release in a criminal
manner.
10)Declare the findings of the Legislature that state and local
law enforcement agencies are not reimbursed for the full cost of
responding to a detainer, which can include, but is not limited
to, extended detention time and the administrative costs of
tracking and responding to detainers.
11)Declare the findings of the Legislature that unlike criminal
detainers, which are supported by a warrant and require probable
cause, there is no requirement for a warrant and no established
standard of proof such as reasonable suspicion or probable
cause, for issuing an ICE detainer request. Immigration
detainers have erroneously been placed on U.S. citizens as well
as immigrants who are not deportable.
12)Clarify the intent of the Legislature that this act shall not
be construed as providing, expanding, or ratifying the legal
authority for any state or local law enforcement agency to
detain an individual on an immigration hold.
13)Define "conviction" as a prior conviction for a serious or
violent felony as specified in existing provisions of law.
14)Delete requirement that the local agency must adopt a plan to
monitor and guard against a U.S. citizen being detained pursuant
AB 1081
Page 4
to an immigration hold, racial profiling and victim and
witnesses to crimes being discouraged from reporting crimes.
15)State that the provisions of this act are severable and if any
provision or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be
given effect without the invalid provisions or application.
EXISTING LAW : Requires, under S-Comm, developed by the U.S.
Department of Homeland Security and ICE in March 2008, that
participating local law enforcement agencies submit arrestees'
fingerprints to ICE and Federal Bureau of Investigation databases,
the U.S. Visitor and Immigrant Status Indicator Technology Program
(US-VISIT), and Automated Biometric Identification System (IDENT),
and allows these federal agencies to access the arrestee's
documented criminal and immigration history. According to ICE
statements and materials, S-Comm is intended to target dangerous
criminals and those who pose threats to public safety.
S-Comm is intended to identify and prioritize for removal
undocumented immigrants based on the following classifications:
1)Level 1 - Individuals who have been convicted of major drug
offenses and violent crimes such as murder, manslaughter, rape,
robbery or kidnapping.
2)Level 2 - Individuals who have been convicted of minor drug and
property offenses such as burglary, larceny, fraud, and money
laundering.
3)Level 3 - Individuals who have been convicted of other offenses.
On April 10, 2009, the California's Department of Justice (DOJ)
entered into a memorandum of agreement (MOA) with ICE to implement
S-Comm in California counties.
AS PASSED BY THE ASSEMBLY , this bill required ICE to modify the
current S-Comm agreement with California to allow counties to
participate in the program only upon the passage of an ordinance
or resolution authorizing participation. Specifically, this bill :
AB 1081
Page 5
1)Required the modified agreement to include the following
exemptions and limitations to S-Comm:
a) Protections for domestic violence victims; and,
b) Protections for juveniles.
2)Required a local government that opts to participate in the
program to prepare a plan to monitor and guard against racial
profiling, discouraging reporting by domestic violence victims,
and harming community policing overall. This plan shall be
deemed a public record for purposes of the Public Records Act.
3)Limited sharing of fingerprints under S-Comm to those of
individuals convicted, rather than merely accused, of a crime.
4)Prohibited obtaining fingerprints for the purposes of S-Comm
program through the use of checkpoints, and the stopping of
individuals solely based on perceived immigration status.
5)Required that ICE establish a complaint mechanism that allows
for expedited review of claims by those put into immigration
removal proceedings prior to conviction as a result of S-Comm.
6)Required that ICE make available to the public on its Internet
Web site quarterly statistics on S-Comm in California, including
information on the following:
a) Number of searches to IDENT;
b) Number of matches to IDENT;
c) Number of detainers issued by ICE based on Level 1, Level
2, and Level 3 offense categories;
d) Number of detainers issued by ICE where charges are never
filed, are later dismissed or where there is ultimately no
conviction;
e) Number of Level 1, Level 2, and Level 3 arrestees who are
transferred into ICE custody after being subjected to an ICE
AB 1081
Page 6
detainer, where charges are never filed, are later dismissed
or where there is ultimately no conviction;
f) Number of identified detainees prosecuted criminally in
federal court;
g) Number of identified detainees removed from the U.S.;
h) Number of identified U.S. citizens and persons with lawful
status identified through S-Comm; and,
i) Nationality, age, and gender of individuals identified and
removed through S-Comm.
7)Stated that ICE must terminate the MOA if these requirements
cannot be fulfilled.
FISCAL EFFECT : According to the Senate Appropriations Committee,
pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, "S-Comm is an extremely
problematic program that enlists local law enforcement to engage
in civil immigration enforcement through the sharing of biometric
data at the point of arrest. The program automatically leads to
investigation of the immigration background of every individual,
citizen or non-citizen, at the point of arrest by electronically
crosschecking fingerprints through an immigration database
allowing ICE officials to detain and deport undocumented
individuals - without the basic right to a day in court.
"While the United States' ICE stated mission for the controversial
S-Comm program is to target serious offenses, the program casts
far too wide a net. ICE's own data shows over 70% of people
deported under S-Comm had no convictions or were accused only of
minor offenses. Unfortunately, this program is unfairly impacting
innocent people, victims of crime, and even survivors of domestic
violence who have called the police for help.
"This program is eroding trust between immigrant communities and
local law enforcement because immigrant residents who are victims
or witnesses to a crime now fear cooperating with police since any
contact can now result in separation from their families and
AB 1081
Page 7
deportation. As a result, years of community policing initiatives
are ruined as entire communities lose trust in law enforcement and
stop reporting crimes or seeking help. S-Comm makes us all less
safe and sends the state in the wrong direction. The program is
exactly what ICE said it is not supposed to be, a simple tool for
mass, indiscriminate non-criminal immigration enforcement.
"In addition to the public safety concerns, S-Comm has also failed
to provide accountability and transparency. ICE has given
contradictory and inconsistent answers to questions from Congress,
media, and local officials regarding the participation of
unwilling jurisdictions. This bill brings S-Comm out of its
shadowy misinformation and creates clear reporting requirements
that let us know how it's operating and who is impacted.
"Forcing this problematic program on localities against their will
creates an undue burden and jeopardizes local community policing
strategies. This bill enables municipalities concerned with the
inherent problems of S-Comm to choose not to participate while
those who opt-in will have the option to do so with safeguards to
protect our communities from the program's pitfalls. This bill
adds safeguards to protect Californians and prevent civil rights
violations. If localities want to participate, this bill will
require a plan to prevent racial profiling and keep children,
crime victims, or survivors of domestic violence from being
wrongfully targeted."
GOVERNOR'S VETO MESSAGE :
Undocumented immigrants play a major role in
California's economy, with many performing low-wage jobs
that others don't want. Comprehensive immigration
reform-including a path to citizenship-would provide
tremendous economic benefits and is long overdue. Until
we have immigration reform, federal agents shouldn't try
to coerce local law enforcement officers into detaining
people who've been picked up for minor offenses and pose
no reasonable threat to their community.
But I am unable to sign this bill as written. Under the
bill, local officers would be prohibited from complying
with an immigration detainer unless the person arrested
AB 1081
Page 8
was charged with, or has been previously convicted of, a
serious or violent felony. Unfortunately, the list of
offenses codified in the bill is fatally flawed because
it omits many serious crimes. For example, the bill
would bar local cooperation even when the person
arrested has been convicted of certain crimes involving
child abuse, drug trafficking, selling weapons, using
children to sell drugs, or gangs. I believe it's unwise
to interfere with a sheriff's discretion to comply with
a detainer issued for people with these kinds of
troubling criminal records.
The significant flaws in this bill can be fixed, and I
will work with the Legislature to see that the bill is
corrected forthwith.
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
FN: 0005964