MISSISSIPPI LEGISLATURE

2011 Regular Session

To: Judiciary B

By: Representatives Jennings, Byrd, Carpenter, Gipson, Hamilton (6th), McGee, Rogers (61st), Weathersby

House Bill 674

AN ACT TO CREATE THE MISSISSIPPI SUPPORT OUR LAW ENFORCEMENT AND SAFE NEIGHBORHOODS ACT OF 2011; TO SET FORTH LEGISLATIVE INTENT; TO REQUIRE COOPERATION AND ASSISTANCE IN ENFORCEMENT OF IMMIGRATION LAWS AND TO INDEMNIFY LAW ENFORCEMENT OFFICERS FOR IMPLEMENTATION OF THIS ACT; TO CREATE THE OFFENSE OF WILLFUL FAILURE TO COMPLETE OR CARRY AN ALIEN REGISTRATION DOCUMENT; TO AMEND SECTION 97-3-54.1, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A LAW ENFORCEMENT OFFICER TO STOP ANY PERSON IN VIOLATION OF TRAFFIC LAWS IN THE ENFORCEMENT OF THE MISSISSIPPI EMPLOYMENT PROTECTION ACT; TO CREATE THE OFFENSE OF UNLAWFUL STOPPING TO HIRE AND PICK UP PASSENGERS FOR WORK; TO CREATE THE OFFENSE OF UNLAWFUL TRANSPORT, CONCEALMENT OR HARBORING OF UNLAWFUL ALIENS; TO PROVIDE FOR THE ARREST WITHOUT WARRANT OF A PERSON REASONABLY BELIEVED TO HAVE COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES; TO AMEND SECTION 71-11-3, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR RETENTION OF E-VERIFY CONFIRMATIONS FOR AT LEAST 3 YEARS AND TO PROVIDE TO AN EMPLOYER THE AFFIRMATIVE DEFENSE OF ENTRAPMENT; TO REQUIRE THE IMMOBILIZATION OR IMPOUNDMENT OF A VEHICLE OPERATED IN FURTHERANCE OF VIOLATIONS UNDER THIS ACT; TO CREATE THE SPECIAL FUND TO BE KNOWN AS THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Legislative intent.  The Legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Mississippi.  The Legislature declares that the intent of this act is to make attrition through enforcement of the public policy of all state agencies and local governments in Mississippi.  The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

     SECTION 2.  Cooperation and assistance in enforcement of immigration laws; indemnification.  (1)  No official or agency of this state or a political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.

     (2)  For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.  Any person who is arrested shall have the person's immigration status determined before the person is released.  The person's immigration status shall be verified with the federal government pursuant to 8 USCS Section 1373(c).  A law enforcement official or agency of this state or political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Mississippi Constitution.  A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

          (a)  A valid Mississippi driver's license.

          (b)  A valid Mississippi identification card issued under Chapter 35, Title 45, Mississippi Code of 1972.

          (c)  A valid tribal enrollment card or other form of tribal identification.

          (d)  If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

     (3)  If an alien who is unlawfully present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the United States Immigration and Customs Enforcement or the United States Customs and Border Protection shall be notified immediately.

     (4)  Notwithstanding any other law, a law enforcement agency may securely transport to a federal facility in this state or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency an alien for whom the agency has received verification that the alien is unlawfully present in the United States and who is in the agency's custody.  A law enforcement agency shall obtain judicial authorization before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside of this state.

     (5)  Except as provided in federal law, officials or agencies of this state and political subdivisions of this state may not be prohibited or in any way be restricted from sending, receiving or maintaining information relating to the immigration status, lawful or unlawful, of any individual or exchanging that information with any other federal, state or local governmental entity for the following official purposes:

          (a)  Determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state.

          (b)  Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or a judicial order issued pursuant to a civil or criminal proceeding in this state.

          (c)  If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by Title II, Chapter 7 of the federal Immigration and Nationality Act.

          (d)  Pursuant to 8 USC Section 1373 and 8 USC Section 1644.

     (6)  This section does not implement, authorize or establish and shall not be construed to implement, authorize or establish the REAL ID Act of 2005 (Public Law 109-13, Division B; 119 Stat. 302), including the use of a radio frequency identification chip.

     (7)  A person who is a legal resident of this state may bring an action in circuit court to challenge any official or agency of this state or a political subdivision of this state that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.  If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than One Thousand Dollars ($1,000.00) and not more than Five Thousand Dollars ($5,000.00) for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.

     (8)  A court shall collect the civil penalty prescribed in subsection (7) of this section and remit the civil penalty to the State Treasurer for deposit in the Gang and Immigration Intelligence Team Enforcement Mission Fund established by Section 10 of House Bill No. ____, 2011 Regular Session.

     (9)  The court may award court costs and reasonable attorney fees to any person or any official or agency of this state or a political subdivision of this state that prevails by an adjudication on the merits in a proceeding brought pursuant to this section.

     (10)  Except in relation to matters in which the officer is adjudged to have acted in bad faith, a law enforcement officer is indemnified by the law enforcement officer's agency against reasonable costs and expenses, including attorney's fees, incurred by the officer in connection with any action, suit or proceeding brought pursuant to this section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency.

     (11)  This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons, and respecting the privileges and immunities of United States citizens.

     SECTION 3.  Willful failure to complete or carry an alien registration document; assessment; exception; authenticated records; classification.  (1)  In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 USCS Section 1304(e) or 1306(a).

     (2)  In the enforcement of this section, an alien's immigration status may be determined by:

          (a)  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status.

          (b)  The United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 USCS Section 1373(c).

     (3)  A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basis except as authorized by Section 47-7-4 until the sentence imposed by the court has been served or the person is eligible for release pursuant to Section 47-7-47.

     (4)  In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs and an additional assessment in the following amounts:

          (a)  At least Five Hundred Dollars ($500.00) for a first violation.

          (b)  Twice the amount specified in paragraph (a) of this subsection if the person was previously subject to an assessment pursuant to this subsection.

     (5)  A court shall collect the assessments prescribed in subsection (4) of this section and remit the assessments to the Department of Public Safety, which shall establish a special subaccount for the monies in the account established for the Gang and Immigration Intelligence Team Enforcement Mission Fund.  Monies in the special subaccount are subject to legislative appropriation for distribution for gang and immigration enforcement and for county jail reimbursement costs relating to illegal immigration.

     (6)  This section does not apply to a person who maintains authorization from the federal government to remain in the United States.

     (7)  Any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record.

     (8)  A violation of this section is a misdemeanor, except that a violation of this section is:

          (a)  A felony punishable by a sentence of not less than two (2) nor more than nine (9) years in the custody of the Department of Corrections if the person violates this section while in possession of any of the following:

              (i)  A Schedule I drug as defined in Section 41-29-113.

              (ii)  A precursor drug or chemical used in the manufacturing of methamphetamine in violation of Section 41-29-313.

              (iii)  Any deadly weapon or a dangerous instrument capable of causing death or serious physical injury under the circumstance in which it is used, attempted to be used, or threatened to be used.

              (iv)  Property used for the purpose of committing any felony, including any completed or preparatory offense, that involves the use of a deadly weapon or a weapon of mass destruction or the intentional or knowing infliction of serious physical injury with the intent to either:

                   1.  Influence the policy or affect the conduct of this state or any of the political subdivisions, agencies or instrumentalities of this state; or

                   2.  Cause substantial damage to or substantial interruption of public communications, communication service providers, public transportation, common carriers, public utilities, public establishments or other public services.

          (b)  A felony punishable by a sentence of not less than one (1) nor more than four (4) years in the custody of the Department of Corrections if the person either:

              (i)  Is convicted of a second or subsequent violation of this section; or

              (ii)  Within sixty (60) months before the violation, has been removed from the United States pursuant to 8 USCS Section 1229(a) or has accepted a voluntary removal from the United States pursuant to 8 USCS Section 1229(c).

     SECTION 4.  Section 97-3-54.1, Mississippi Code of 1972, is amended as follows:

     97-3-54.1.  (1)  (a)  A person who recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, another person, intending or knowing that the person will be subjected to forced labor or services, shall be guilty of the crime of human-trafficking.

          (b)  A person who knowingly subjects, or attempts to subject, another person to forced labor or services shall be guilty of the crime of procuring involuntary servitude.

          (c)  A person who knowingly subjects, or attempts to subject, or who recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, a minor, knowing that the minor will engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, or causes or attempts to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, shall be guilty of procuring sexual servitude of a minor and shall be punished by commitment to the custody of the Department of Corrections for not more than thirty (30) years.

     (2)  A person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section, or who benefits, whether financially or by receiving anything of value, from participation in a venture that has engaged in an act described in this section, shall be committed to the custody of the Department of Corrections for not more than twenty (20) years.

     (3)  Notwithstanding any other law, in the enforcement of this section, a peace officer may lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law.

     SECTION 5.  Unlawful stopping to hire and pick up passengers for work; unlawful application or solicitation for employment.  (1)  It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

     (2)  It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

     SECTION 6.  Unlawful transporting, moving, concealing, harboring or shielding of unlawful aliens; vehicle impoundment; exception; classification.  (1)  It is unlawful for a person to:

          (a)  Transport or move or attempt to transport or move an alien in this state, in furtherance of the illegal presence of the alien in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

          (b)  Conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

          (c)  Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.

     (2)  A means of transportation that is used in the commission of a violation of this section is subject to mandatory vehicle immobilization or impoundment pursuant to Section 9, House Bill No. ____, 2011 Regular Session.

     (3)  This section does not apply to a child protective services worker acting in the worker's official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant or an emergency medical technician and who is transporting or moving an alien in this state pursuant to Title 41, Mississippi Code of 1972.

     (4)  A person who violates this section is guilty of a misdemeanor and is subject to a fine of at least One Thousand Dollars ($1,000.00), except in a court having a lower maximum jurisdiction, and except that a violation of this section that involves ten (10) or more illegal aliens is a felony punishable by imprisonment in the custody of the Department of Corrections for not less than one (1) nor more than two (2) years, and the person is subject to a fine of not less than One Thousand Dollars ($1,000.00) for each alien who is involved.

     SECTION 7.  Warrantless arrest of certain persons eligible for deportation.  A peace officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person to be arrested has committed any public offense that makes the person removable from the United States.

     SECTION 8.  Section 71-11-3, Mississippi Code of 1972, is amended as follows:

     71-11-3.  (1)  This chapter shall be known as the "Mississippi Employment Protection Act."

     (2)  The provisions of this section shall be enforced without regard to race, gender, religion, ethnicity or national origin.

     (3)  For the purpose of this section only, the following words shall have the meanings ascribed herein unless the content clearly states otherwise:

          (a)  "Employer" is any person or business that is required by federal or state law to issue a United States Internal Revenue Service Form W-2 or Form 1099 to report income paid to employed or contracted personnel in Mississippi.

          (b)  "Employee" is any person or entity that is hired to perform work within the State of Mississippi and to whom a United States Internal Revenue Service Form W-2 or Form 1099 must be issued.

          (c)  "Third-party employer" is any person or company that provides workers for another person or company.  This includes, but is not limited to, leasing companies and contract employers.

          (d)  "Status verification system" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Public Law 104-208, Division C, Section 403(a); 8 USC, Section 1324a, and operated by the United States Department of Homeland Security, known as the E-Verify Program.

          (e)  "Unauthorized alien" means an alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code.

          (f)  "Public employer" means every department, agency or instrumentality of the state or a political subdivision of the state.

          (g)  "Subcontractor" means a subcontractor, contract employee, staffing agency or any contractor regardless of its tier.

          (h)  "Solicit" means communication, whether verbally or nonverbally by a gesture or a nod, that would indicate to a reasonable person that a person is willing to be employed.

     (4)  (a)  Employers in the State of Mississippi shall only hire employees who are legal citizens of the United States of America or are legal aliens.  For purposes of this section, a legal alien is an individual who was lawfully present in the United States at the time of employment and for the duration of employment, or was permanently residing in the United States under color of law at the time of employment and for the duration of employment.

          (b)  (i)  Every employer shall register with and utilize the status verification system to verify the federal employment authorization status of all newly hired employees and shall keep a record of the verification for the duration of the employee's employment or at least three (3) years, whichever is longer.

              (ii)  No contractor or subcontractor shall hire any employee unless the contractor or subcontractor registers and participates in the status verification system to verify the work eligibility status of all newly hired employees.

              (iii)  No contractor or subcontractor who enters into a contract with a public employer shall enter into such a contract or subcontract unless the contractor or subcontractor registers and participates in the status verification system to verify information of all newly hired employees.

          (c)  The provision of this section shall not apply to any contracts entered into on or before July 1, 2008.

          (d)  It shall be a discriminatory practice for an employer to discharge an employee working in Mississippi who is a United States citizen or permanent resident alien while retaining an employee who the employing entity knows, or reasonably should have known, is an unauthorized alien hired after July 1, 2008, and who is working in Mississippi in a job category that requires equal skill, effort and responsibility, and which is performed under similar working conditions, as defined by 29 USC, Section 206(d)(1), as the job category held by the discharged employee.

          (e)  An employing entity which, on the date of the discharge in question, was enrolled in and used the status verification system to verify the employment eligibility of its employees in Mississippi hired after July 1, 2008, shall be exempt from liability, investigation or suit arising from any action under this section.

          (f)  No cause of action for a violation of this section shall lie under any other Mississippi law but shall arise solely from the provisions of this section.

     (5)  Any employer that complies with the requirements of this section shall be held harmless by the Mississippi Department of Employment Security, provided the employer is not directly involved in the creation of any false documents, and provided that the employer did not knowingly and willfully accept false documents from the employee.

     (6)  (a)  All third-party employers that conduct business in Mississippi shall register to do business in Mississippi with the Mississippi Department of Employment Security before placing employees into the workforce in Mississippi.

          (b)  Third-party employers shall provide proof of registration and any participation in the status verification system to any Mississippi employer with whom they do business.

     (7)  (a)  State of Mississippi agencies and political subdivisions, public contractors and public subcontractors and private employers with two hundred fifty (250) or more employees shall meet verification requirements not later than July 1, 2008.

          (b)  Employers with at least one hundred (100) but less than two hundred fifty (250) employees shall meet verification requirements not later than July 1, 2009.

          (c)  Employers with at least thirty (30) but less than one hundred (100) employees shall meet verification requirements not later than July 1, 2010.

          (d)  All employers shall meet verification requirements not later than July 1, 2011.

          (e)  (i)  Any employer violating the provisions of this section shall be subject to the cancellation of any state or public contract, resulting in ineligibility for any state or public contract for up to three (3) years, the loss of any license, permit, certificate or other document granted to the employer by any agency, department or government entity in the State of Mississippi for the right to do business in Mississippi for up to one (1) year, or both.

              (ii)  The contractor or employer shall be liable for any additional costs incurred by the agencies and institutions of the State of Mississippi, or any of its political subdivisions, because of the cancellation of the contract or the loss of any license or permit to do business in the state.

              (iii)  Any person or entity penalized under this section shall have the right to appeal to the appropriate entity bringing charges or to the circuit court of competent jurisdiction.

          (f)  The Department of Employment Security, State Tax Commission, Secretary of State, Department of Human Services and the Attorney General shall have the authority to seek penalties under this section and to bring charges for noncompliance against any employer or employee.

     (8)  (a)  There shall be no liability under this section in the following circumstances:

              (i)  An employer who hires an employee through a state or federal work program that requires verification of the employee's social security number and provides for verification of the employee's lawful presence in the United States in an employment-authorized immigration status;

              (ii)  Any candidate for employment referred by the Mississippi Department of Employment Security, if the Mississippi Department of Employment Security has verified the social security number and provides for verification of the candidate's lawful presence in the United States in an employment-authorized immigration status; or

              (iii)  Individual homeowners who hire workers on their private property for noncommercial purposes, unless required by federal law to do so.

          (b)  (i)  Compliance with the sections of this statute shall not exempt the employer from regulations and requirements related to any federal laws or procedures related to employers.

              (ii)  This section shall not be construed as an attempt to preempt federal law.

          (c)  (i)  It shall be a felony for any person to accept or perform employment for compensation knowing or in reckless disregard that the person is an unauthorized alien with respect to employment during the period in which the unauthorized employment occurred.  Upon conviction, a violator shall be subject to imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years, a fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or both.

              (ii)  For purposes of determining bail for persons who are charged under this section, it shall be a rebuttable presumption that a defendant who has entered and remains in the United States unlawfully is deemed at risk of flight for purposes of bail determination.

          (d)  It is a misdemeanor for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work or solicit work in a public place in this state.

     (9)  (a)  It is an affirmative defense to a violation of subsection (4) of this section that the employer was entrapped.  To claim entrapment, the employer must admit by the employer's testimony or other evidence the substantial elements of the violation.  An employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:

              (i)  The idea of committing the violation started with law enforcement officers or their agents rather than with the employer.

              (ii)  The law enforcement officers or their agents urged and induced the employer to commit the violation.

              (iii)  The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.

          (b)  An employer does not establish entrapment if the employer was predisposed to violate paragraph (a) of this subsection and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation.  It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity.  The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.

     SECTION 9.  A peace officer shall cause the removal and either immobilization or impoundment of a vehicle if the peace officer determines that a person is driving the vehicle in furtherance of the illegal presence of an alien in the United States and in violation of a criminal offense, the person is transporting or moving or attempting to transport or move an alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law, or the person is concealing, harboring or shielding or attempting to conceal, harbor or shield from detection an alien in this state in a vehicle if the person knows or recklessly disregards the fact that the alien has come to, entered or remains in the United States in violation of law.

     SECTION 10.  (1)  The Department of Public Safety shall implement a Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) that will allow state and local law enforcement, court personnel, prosecutors and other agencies to participate in uniform law enforcement in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons while respecting the privileges and immunities of United States citizens, and for reimbursement to county jails of costs relating to immigration.

     (2)  There is created in the State Treasury a special fund to be known as the Gang and Immigration Intelligence Team Enforcement Mission Fund.  The purpose of the fund shall be to provide funding for the Gang and Immigration Intelligence Team Enforcement Mission.  Monies from the fund shall be distributed by the State Treasurer upon warrants issued by the Department of Public Safety.  The fund shall be a continuing fund, not subject to fiscal-year limitations, and shall consist of:

          (a)  Monies appropriated by the Legislature;

          (b)  The interest accruing to the fund;

          (c)  Monies received under the provisions of Section 2(8) of House Bill No. ____, 2011 Regular Session;

          (d)  Monies received from the federal government;

          (e)  Donations; and

          (f)  Monies received from such other sources as may be provided by law.

     SECTION 11.  This act shall take effect and be in force from and after October 1, 2011.