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HOUSE AMENDED
PRIOR PRINTER'S NOS. 143, 162, 295
PRINTER'S NO. 2096
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
10
Session of
2017
INTRODUCED BY RESCHENTHALER, ALLOWAY, VULAKOVICH, FOLMER, REGAN,
SCARNATI, ARGALL, McGARRIGLE, VOGEL, BARTOLOTTA,
EICHELBERGER, AUMENT, WARD, WHITE, RAFFERTY, MARTIN, WAGNER,
DiSANTO, HUTCHINSON, CORMAN, STEFANO AND YAW,
JANUARY 20, 2017
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, OCTOBER 10, 2018
AN ACT
Amending Titles 42 (Judiciary and Judicial Procedure) and 53
(Municipalities Generally) of the Pennsylvania Consolidated
Statutes, in matters affecting government units, further
providing for exceptions to governmental immunity; and, in
preemptions, providing for municipality of refuge.
AMENDING TITLE 29 (FEDERAL RELATIONS) OF THE PENNSYLVANIA
CONSOLIDATED STATUTES, PROVIDING FOR IMMIGRATION PREEMPTION
AND COOPERATION.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 8542 of Title 42 of the Pennsylvania
Consolidated Statutes is amended by adding a subsection to read:
§ 8542. Exceptions to governmental immunity.
* * *
(a.1) Liability imposed on municipality of refuge.--
Notwithstanding subsection (a), a municipality of refuge
shall be liable for damages on account of an injury to a
person or property within the limits set forth in this
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subchapter if the injury was caused by the act of an
individual that was in the custody , pursuant to a lawful
arrest, of the law enforcement agency of the municipality of
refuge and was released, notwithstanding the existence of a
United States Immigration and Customs Enforcement civil
immigration detainer request for the individual.
(2) As used in this subsection, the term "municipality
of refuge" shall have the same meaning as given to the term
in 53 Pa.C.S. § 305 (relating to municipality of refuge).
* * *
Section 2. Title 53 is amended by adding a section to read:
§ 305. Municipality of refuge.
(a) Immigration.--The governing body of any municipality may
not adopt a rule, order, ordinance or policy which prohibits the
enforcement of a Federal law or the laws of this Commonwealth,
pertaining to an immigrant or immigrations.
(b) Eligibility.--
(1) A law enforcement agency or municipality that
refuses to enforce an immigration order shall not be
eligible:
(i) for any State grant; or
(ii) to participate in the sale of State surplus
property.
(2) This subsection shall not apply to a law enforcement
agency or municipality that has made an attempt to coordinate
with a Federal agency pursuant to an immigration order to
transfer the custody of a suspect in question but was unable
to do so within the time frame requested by Federal
immigration officials up to a maximum of 48 hours, excluding
weekends and holidays, of extended custody.
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(c) Reinstatement.--A law enforcement agency or municipality
that has lost eligibility under subsection (b) may be reinstated
for eligibility by providing proof to the appropriate State
agency that it is currently enforcing immigration orders and
that it has rescinded any rule, order, ordinance or policy
described under subsection (a) .
(d) Enforcement.--Each State agency and executive department
offering State grants or overseeing the sale of State surplus
property to municipalities shall require each municipality to
verify under penalty of perjury that the municipality is not a
municipality of refuge and is in compliance with subsection (a).
(e) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Municipality." Any county, city, borough, incorporated
town, township, home rule municipality, optional plan
municipality, optional charter municipality or any similar
general purpose unit of government which may be created or
authorized by statute.
"Municipality of refuge." A municipality that permits ,
requires or requests the release of an individual in the custody
of the law enforcement agency of the municipality
notwithstanding the existence of a United States Immigration and
Customs Enforcement civil immigration detainer request for the
individual.
Section 3. This act shall take effect in 60 days.
SECTION 1. TITLE 29 OF THE PENNSYLVANIA CONSOLIDATED
STATUTES IS AMENDED BY ADDING PARTS TO READ:
PART I
PRELIMINARY PROVISIONS
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(RESERVED)
PART II
IMMIGRATION
CHAPTER
21. PREEMPTION AND COOPERATION
CHAPTER 21
PREEMPTION AND COOPERATION
SEC.
2101. SCOPE OF CHAPTER.
2102. DEFINITIONS.
2103. PREEMPTION.
2104. COOPERATION.
§ 2101. SCOPE OF CHAPTER.
THIS CHAPTER APPLIES TO THE PREEMPTION OF MUNICIPAL
IMMIGRATION POLICIES AND COOPERATION OF FEDERAL AND STATE
AGENCIES RELATING TO IMMIGRATION.
§ 2102. DEFINITIONS.
THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
CONTEXT CLEARLY INDICATES OTHERWISE:
"COMMISSION." THE PENNSYLVANIA COMMISSION ON CRIME AND
DELINQUENCY.
"CORRECTIONS OFFICER." AS DEFINED IN 61 PA.C.S. § 102
(RELATING TO DEFINITIONS).
"COUNTY CORRECTIONAL INSTITUTION." AS DEFINED IN 61 PA.C.S.
§ 102.
"IMMIGRATION DETAINER REQUEST." A REQUEST BY A FEDERAL
AGENCY TO MAINTAIN TEMPORARY CUSTODY OF AN ALIEN, INCLUDING A
UNITED STATES HOMELAND SECURITY FORM I-247 DOCUMENT OR A SIMILAR
OR SUCCESSOR FORM.
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"IMMIGRATION COOPERATION FUND" OR "FUND." THE IMMIGRATION
COOPERATION FUND ESTABLISHED UNDER SECTION 2103(E) (RELATING TO
PREEMPTION).
"IMMIGRATION LAWS." FEDERAL LAWS, REGULATIONS AND POLICY
MEMORANDA RELATING TO ALIENS, IMMIGRANTS OR IMMIGRATION,
INCLUDING THE IMMIGRATION AND NATIONALITY ACT (66 STAT. 163, 8
U.S.C. § 1101 ET SEQ.) AND 8 CFR (RELATING TO ALIENS AND
NATIONALITY).
"INDIVIDUAL ADVERSELY AFFECTED." ANY OF THE FOLLOWING:
(1) A RESIDENT OF A MUNICIPALITY ALLEGED TO BE IN
VIOLATION OF SECTION 2103(A).
(2) AN INDIVIDUAL WHO OTHERWISE HAS STANDING UNDER THE
LAWS OF THIS COMMONWEALTH TO BRING AN ACTION UNDER SECTION
2103(B).
"JUDICIAL OFFICER." AS DEFINED IN 42 PA.C.S. § 102 (RELATING
TO DEFINITIONS).
"JUDICIAL STAFF." ADMINISTRATIVE STAFF, AS THAT TERM IS
DEFINED IN 42 PA.C.S. § 102.
"LAW ENFORCEMENT AGENCY." THE OFFICE OF ATTORNEY GENERAL, A
DISTRICT ATTORNEY'S OFFICE OR AN AGENCY THAT EMPLOYS A LAW
ENFORCEMENT OFFICER.
"LAW ENFORCEMENT OFFICER." AN OFFICER OF THE UNITED STATES,
ANOTHER STATE OR POLITICAL SUBDIVISION THEREOF, OR OF THE
COMMONWEALTH OR POLITICAL SUBDIVISION THEREOF, WHO IS EMPOWERED
BY LAW TO CONDUCT INVESTIGATIONS OF OR TO MAKE ARRESTS FOR
OFFENSES ENUMERATED IN 18 PA.C.S. (RELATING TO CRIMES AND
OFFENSES) OR AN EQUIVALENT CRIME IN ANOTHER JURISDICTION AND ANY
ATTORNEY AUTHORIZED BY LAW TO PROSECUTE OR PARTICIPATE IN THE
PROSECUTION OF AN OFFENSE.
"MUNICIPALITY." ANY COUNTY, CITY, BOROUGH, INCORPORATED
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TOWN, TOWNSHIP, HOME RULE MUNICIPALITY, OPTIONAL PLAN
MUNICIPALITY, OPTIONAL CHARTER MUNICIPALITY OR ANY SIMILAR
GENERAL PURPOSE UNIT OF GOVERNMENT CREATED OR AUTHORIZED BY
STATUTE.
"PAROLE OFFICER." A STATE PAROLE AGENT APPOINTED BY THE
PENNSYLVANIA BOARD OF PROBATION AND PAROLE OR A COUNTY PROBATION
OR PAROLE OFFICER OF THE COMMONWEALTH.
"POLICY." AN ORDINANCE, A RESOLUTION, REGULATION, RULE,
PRACTICE OR ANY OTHER ACTION, WHETHER FORMAL OR INFORMAL,
PROMULGATED OR ENFORCED BY A MUNICIPALITY.
"REASONABLE EXPENSES." ATTORNEY FEES, EXPERT WITNESS FEES
AND COURT COSTS.
§ 2103. PREEMPTION.
(A) IMMIGRATION POLICIES PREEMPTED.--A MUNICIPALITY MAY NOT
ADOPT OR ENFORCE A POLICY WHICH PROHIBITS OR MATERIALLY LIMITS A
LAW ENFORCEMENT AGENCY, LAW ENFORCEMENT OFFICER, CORRECTIONS
OFFICER, PAROLE OFFICER, JUDICIAL OFFICER OR JUDICIAL STAFF FROM
ENFORCING IMMIGRATION LAWS, INCLUDING THE FOLLOWING:
(1) COMPLIANCE WITH SECTION 2104 (RELATING TO
COOPERATION).
(2) ASSISTING OR COOPERATING WITH AN OFFICER FROM UNITED
STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES
IMMIGRATION AND CUSTOMS ENFORCEMENT OR ANOTHER FEDERAL AGENCY
REGARDING IMMIGRATION LAWS, INCLUDING PROVIDING ENFORCEMENT
ASSISTANCE.
(3) PERMITTING AN OFFICER FROM UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES, UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT OR ANOTHER FEDERAL AGENCY TO ENTER A
COUNTY CORRECTIONAL INSTITUTION, INCLUDING FOR THE PURPOSE OF
INTERVIEWING AN INDIVIDUAL IN CUSTODY AT THE INSTITUTION OR
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ENFORCING IMMIGRATION LAWS.
(4) INQUIRING INTO THE IMMIGRATION STATUS OF AN
INDIVIDUAL IN CUSTODY.
(5) WITH RESPECT TO INFORMATION RELATING TO THE RELEASE
DATE OR IMMIGRATION STATUS OF AN INDIVIDUAL IN CUSTODY,
INCLUDING INFORMATION RELATING TO NAME, DATE AND PLACE OF
BIRTH:
(I) SENDING THE INFORMATION TO OR REQUESTING OR
RECEIVING THE INFORMATION FROM UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES, UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT OR ANOTHER FEDERAL AGENCY.
(II) MAINTAINING THE INFORMATION.
(III) EXCHANGING THE INFORMATION WITH ANOTHER
MUNICIPALITY OR FEDERAL OR STATE AGENCY.
(B) RELIEF.--AN INDIVIDUAL ADVERSELY AFFECTED BY A POLICY
PROHIBITED UNDER SUBSECTION (A) MAY FILE AN ACTION FOR
DECLARATORY OR INJUNCTIVE RELIEF. ORIGINAL JURISDICTION FOR AN
ACTION UNDER THIS SUBSECTION SHALL BE IN COMMONWEALTH COURT OR
ANY OTHER COURT WITH APPROPRIATE JURISDICTION.
(C) PREVAILING PARTY.--IF AN INDIVIDUAL ADVERSELY AFFECTED
PROVIDES WRITTEN NOTICE OF THE INDIVIDUAL'S INTENTION TO FILE AN
ACTION PURSUANT TO SUBSECTION (B) TO THE DEFENDANT 60 DAYS PRIOR
TO FILING THE ACTION, THE INDIVIDUAL ADVERSELY AFFECTED SHALL BE
DECLARED THE PREVAILING PARTY IF:
(1) A FINAL DETERMINATION BY THE COURT IS GRANTED, IN
WHOLE OR IN PART, IN FAVOR OF THE INDIVIDUAL ADVERSELY
AFFECTED; OR
(2) THE POLICY IN QUESTION IS RESCINDED, REPEALED OR
OTHERWISE ABROGATED AFTER SUIT HAS BEEN FILED UNDER
SUBSECTION (B) BUT BEFORE THE FINAL DETERMINATION BY THE
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COURT.
(D) REASONABLE EXPENSES AND DAMAGES.--IF AN INDIVIDUAL
ADVERSELY AFFECTED IS DECLARED A PREVAILING PARTY, THE COURT
SHALL AWARD ALL OF THE FOLLOWING TO THE INDIVIDUAL ADVERSELY
AFFECTED:
(1) REASONABLE EXPENSES.
(2) ACTUAL DAMAGES.
(3) LIQUIDATED DAMAGES OF $100,000 FOR EACH DAY THAT THE
POLICY PROHIBITED UNDER SUBSECTION (A) HAS BEEN IN EFFECT OR
$1,000,000, WHICHEVER IS GREATER, TO BE PAID INTO THE
IMMIGRATION COOPERATION FUND.
(E) FUND ESTABLISHED.--THE IMMIGRATION COOPERATION FUND IS
ESTABLISHED AS A RESTRICTED ACCOUNT IN THE GENERAL FUND. THE
FUND SHALL INCLUDE REVENUES FROM DAMAGES PAID UNDER SUBSECTION
(D) AND OTHER MONEY AS MAY BE APPROPRIATED INTO THE FUND. MONEY
IN THE FUND IS APPROPRIATED TO THE COMMISSION ON A CONTINUING
BASIS FOR THE PURPOSE OF PROVIDING GRANTS TO LAW ENFORCEMENT
AGENCIES TO COOPERATE WITH FEDERAL AGENCIES REGARDING THE
ENFORCEMENT OF IMMIGRATION LAWS.
§ 2104. COOPERATION.
(A) DUTY TO COOPERATE WITH FEDERAL IMMIGRATION REQUESTS.--
(1) A LAW ENFORCEMENT AGENCY OR MUNICIPALITY THAT HAS
CUSTODY OF AN INDIVIDUAL SUBJECT TO AN IMMIGRATION DETAINER
REQUEST ISSUED BY UNITED STATES IMMIGRATION AND CUSTOMS
ENFORCEMENT SHALL:
(I) COMPLY WITH, HONOR AND FULFILL ANY REQUEST MADE
IN THE DETAINER REQUEST.
(II) INFORM THE INDIVIDUAL THAT THE INDIVIDUAL IS
BEING HELD PURSUANT TO AN IMMIGRATION DETAINER REQUEST
ISSUED BY THE FEDERAL GOVERNMENT.
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(2) A LAW ENFORCEMENT AGENCY OR MUNICIPALITY SHALL
PROVIDE ANY INFORMATION REQUESTED BY UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES
IMMIGRATION AND CUSTOMS ENFORCEMENT OR ANOTHER FEDERAL AGENCY
RELATING TO THE RELEASE DATE OR IMMIGRATION STATUS OF ANY
INDIVIDUAL IN ITS CUSTODY, INCLUDING INFORMATION RELATING TO
NAME, DATE AND PLACE OF BIRTH.
(B) EXCEPTION.--SUBSECTION (A) SHALL NOT APPLY IF AN
INDIVIDUAL PROVIDES PROOF THAT THE INDIVIDUAL IS A CITIZEN OF
THE UNITED STATES OR HAS LAWFUL IMMIGRATION STATUS IN THE UNITED
STATES.
(C) UNCONSTITUTIONAL ACTIONS AND DISCRIMINATION
PROHIBITED.--TO THE EXTENT PROHIBITED BY THE CONSTITUTION OF THE
UNITED STATES AND THE CONSTITUTION OF PENNSYLVANIA, A LAW
ENFORCEMENT AGENCY OR MUNICIPALITY MAY NOT CONSIDER THE RACE,
COLOR, RELIGION, LANGUAGE OR NATIONAL ORIGIN OF AN INDIVIDUAL
WHILE COOPERATING WITH FEDERAL AGENCIES FOR THE PURPOSE OF
ENFORCING IMMIGRATION LAWS.
(D) DEFENSE OF LAW ENFORCEMENT AGENCIES AND
MUNICIPALITIES.--
(1) THE ATTORNEY GENERAL OF THE COMMONWEALTH SHALL
DEFEND A LAW ENFORCEMENT AGENCY OR MUNICIPALITY FROM A CIVIL
ACTION IF ALL OF THE FOLLOWING APPLY:
(I) THE LAW ENFORCEMENT AGENCY OR MUNICIPALITY
REQUESTS THE ATTORNEY GENERAL'S DEFENSE.
(II) THE ATTORNEY GENERAL DETERMINES THAT THE CIVIL
ACTION ARISES OUT OF, IN WHOLE OR IN PART, GOOD FAITH
COMPLIANCE WITH THIS SECTION.
(2) IF THE ATTORNEY GENERAL DEFENDS A LAW ENFORCEMENT
AGENCY OR MUNICIPALITY UNDER THIS SECTION, THE ATTORNEY
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GENERAL SHALL BE REQUIRED TO PAY FOR THE EXPENSES AND COSTS
OF THE CIVIL ACTION AND THE COMMONWEALTH SHALL BE LIABLE FOR
ANY JUDGMENT OR SETTLEMENT OF THE ACTION. THE LAW ENFORCEMENT
AGENCY OR MUNICIPALITY SHALL NOT BE REQUIRED TO PAY FOR THE
EXPENSES, COSTS, JUDGMENT OR SETTLEMENT OF THE CIVIL ACTION.
SECTION 2. IF ANY PROVISION OF THIS ACT OR ITS APPLICATION
TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY
SHALL NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THIS ACT
WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR
APPLICABILITY.
SECTION 3. THIS ACT SHALL TAKE EFFECT JANUARY 1, 2019.
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