Anti-Sanctuary, HB 915
BILL STATUS: Bill is in House Second Readers (as of 2/19/2020)
INTRODUCTION
We strongly oppose HB 915, a sweeping piece of legislation that would ban any sanctuary policy in the state of Georgia and mandate local enforcement of federal immigration law. As of mid-2017 data, Georgia has made the list of top 5 states for detention and deportation for undocumented individuals. This is made possible, in part, by the five counties that have signed 287(g) contracts with the Department of Homeland Security’s Immigration and Customs Enforcement (ICE), allowing those county sheriffs to act as immigration enforcement to detain undocumented individuals that are arrested. The proposed law under HB 915 would further the detention and deportation of immigrants by allowing all local law enforcement agencies to act as immigration enforcement. We know that having our local enforcement do the job of the federal government in enforcing immigration law only causes community distrust in the police, costs our state and local governments more than they can afford, and has a significant impact on children and families. HB 915 is unnecessary, unconstitutional, and punitive.
PROHIBITS SANCTUARY POLICIES
HB 915 prohibits any “sanctuary policies” from being implemented. The bill defines a sanctuary policy as any law, policy, practice, procedure or custom, formal or informal, written or unwritten, that prohibits or impedes a law enforcement agency from complying with 8 USC Section 1373 or which prohibits or impedes a law enforcement agency from communicating or cooperating with a federal immigration agency. To date, in the State of Georgia, only seven municipalities have enacted “nondetainer” policies.
In addition, the state of Georgia has previously outlawed sanctuary policies, and has continued to strengthen those laws through similar legislation to prohibit sanctuary cities (SB 269, 2016) and sanctuary campuses (HB 37, 2017).
INCREASED COST TO STATE AND COUNTY GOVERNMENTS
The cost of requiring all local law enforcement to cooperate with ICE is prohibitive. For example, according to the Department of Homeland Security, ICE spent $32 billion in 2016 to identify, arrest, detain, and remove undocumented immigrants. If all local law enforcement agencies are forced to cooperate with ICE, then that essentially leads to a situation where every officer could be required to be deputized and take on some of the duties of ICE – including identifying, arresting, or detaining immigrants, all which would come out of state funding and costs. In addition, all officers would need to be trained in immigration law to cooperate with ICE in legal manners, and that training cost is also prohibitive.
Increased costs to counties
Miami-Dade County, which decided to implement cooperation with ICE in January 2017, charged its taxpayers $13.6 million dollars for one year of local law enforcement cooperation with ICE. See, The Cost of Complicity: A Fiscal Impact Analysis of Immigration Detainers in Miami-Dade County, Florida. It cost one county $13.6 million dollars to cooperate with ICE from January 2017 to January 2018. In comparison, Georgia has 159 counties and with a proposed law that would require cooperation with ICE, the cost would be significant. Our state believes in fiscal responsibility, thus entangling ICE and local law enforcement is not fiscally responsible.
Increased litigation costs
In order to cooperate with ICE in investigations, detainers and notifications result in local law enforcement consistently violating Constitutional protections. These violations have led to litigation against counties throughout the country. For example, in Galarza v. Szalczyk, 745 F. 3d 643 (3d Cir. 2014), Leigh County paid $95,000 in fines and attorney fees based on cooperation with ICE litigation for a single individual. Given Monell liability standards, counties will face increasing costs and litigation if forced to adopt a statewide policy requiring cooperation with ICE.
Increased costs to the judicial system
Circuit courts all over the country have found that in order to detain individuals for immigration purposes, officers must still have a judicial warrant and probable cause under the 4th Amendment. In order to comply with these requirements, judges will face increased caseloads and litigation in regards to whether 4th Amendment rights have been violated. In addition, Georgia has consistently faced judicial backlogs, informing its participation in Reinvestment Initiatives to reduce jail populations, reduce felony and misdemeanor cases, and improve non-detention services. A state bill requiring cooperation with ICE by local law enforcement, would be in direct opposition to the policy goals of the county and state in reducing judicial backlog. See, The Fulton County Improvement Task Force: Final Report and Recommendations 2012, published by Georgia Administrative Office of the Courts.
Demolition of the Economy
In addition to costs, the cooperation with ICE would have a catastrophic effect on the Georgia economy. We already know that the passage of HB 87 in 2011, which mandated E-Verify for certain businesses and made it more difficult for undocumented immigrants to work, cost Georgia's largest industry, farming, $140 million in labor shortages with negative spillover effects into restaurant and hotel businesses, reported by Forbes. In addition, as the state continues to grow and attract new business, hateful policies like these would deter investment by domestic and international corporations.
MAKES COMMUNITIES LESS SAFE
When local law enforcement is engaging in immigration enforcement, this creates fear in immigrant communities, preventing immigrant victims and witnesses of crime from coming forward. The study, Secure Communities by the Numbers: An Analysis of Demographics and Due Process, also found that entanglement with ICE also fuels racial profiling and pre-textual arrests. In fact, the President’s Task Force on Police has stated “Trust between law enforcement agencies and the people they protect and serve is essential in a democracy. It is key to the stability of our communities, the integrity of our criminal justice system, and the safe and effective delivery of policing services.” The President’s Task Force on 21st Century Policing, 2015. Moreover, a University of Chicago study found that 62% of Latinos found that police stop them for no good cause (based on racial profiling), including 58% of U.S. born Latino citizens. This same study found that 44% of Latinos will not report being a victim of a crime to the police because they are afraid that the police will use this as an opportunity to question them about their or people they know immigration status.
LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAW
HB 915 requires law enforcement officers to use their “best efforts” to support enforcement of federal immigration law. In addition, this bill prohibits local and state governmental agencies, from restricting law enforcement from exchanging information related to an individual’s immigration status, using the information to comply with an ICE detainer, or using the information to confirm the identity of a person detained by law enforcement.
Further, the bill’s broad mandates to support immigration enforcement also extend to the conduct of judges. Specifically, it requires judges to order correctional facilities to reduce a criminal sentence by up to twelve days for a defendant who is the subject of an immigration detainer if the sentence reduction would facilitate a smooth transfer of the defendant to federal custody. In addition, the bill requires law enforcement to notify a judge if ICE detainer is placed subsequent to criminal sentencing and requires law enforcement agency to notify the judge with authority to grant/deny bond or otherwise release of any ICE detainer.
REQUIRES COMPLIANCE WITH ICE DETAINERS
HB 915 requires law enforcement agencies to comply with an ICE detainer as long as it is “facially sufficient” as defined under the statute. This bill defines a detainer to be “facially sufficient” if the detainer itself asserts probable cause to believe that the person to be detained is removable or is accompanied by a separate affidavit or other “official documentation” that includes an equivalent statement about probable cause. Under current law, immigration detainers are merely requests; law enforcement agencies can choose whether or not to comply. HB 915 would make compliance mandatory.
Continued detention pursuant to an immigration detainer constitutes a new arrest, which violates the Fourth Amendment in the absence of a judicial warrant or probable cause. Even where an immigration detainer asserts probable cause of removability, some federal courts have ruled that probable cause of removability--which is a civil matter--cannot justify a criminal arrest. Therefore, requiring law enforcement agencies to comply with all immigration detainers exposes them to significant liability under the Fourth Amendment for an illegal arrest or detention.
NON-COMPLIANCE PENALTIES AND CONSEQUENCES
HB 915 creates both criminal and civil penalties for state and local governmental entities and law enforcement agencies who violate its provisions. It makes the knowing failure to comply with an immigration detainer a misdemeanor of a “high and aggravated nature.” It also requires employees or agents of state and local government entities and law enforcement agencies to report to the Attorney General any known or suspected violations of the statute. If the Attorney General finds the complaint to be valid, the Attorney General may file a lawsuit against the entity or agency. If an intentional violation of the statute is found, hefty fines will attach: a minimum of $1,500 for the first violation and between $25,000 and $25,000 for any subsequent violation. In addition, this statute would authorize the Attorney General to file a petition for declaratory or injunctive relief, mandamus relief, or other relief with the Fulton County Superior Court or in county of principal office of defendant to compel compliance with this statute. If a court finds a violation of this statute, it requires the court to immediately enjoin the violation.
Lastly, this statute creates a private cause of action against state and local government entity or law enforcement agency who violates this statute if a person is injured or killed by an undocumented immigrant as a result of such violation.