MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Judiciary, Division A
By: Senator(s) Fillingane, Burton, Chassaniol, Dickerson, Hudson, King
AN ACT TO CREATE THE MISSISSIPPI SUPPORT OUR LAW ENFORCEMENT AND SAFE NEIGHBORHOODS ACT OF 2011; TO SET FORTH LEGISLATIVE INTENT AND SHORT TITLE; 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 AMEND SECTION 99-3-7, MISSISSIPPI CODE OF 1972, 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, TO PROVIDE TO AN EMPLOYER THE AFFIRMATIVE DEFENSE OF ENTRAPMENT, AND TO CLARIFY ENFORCEMENT AND PENALTIES UNDER THE MISSISSIPPI EMPLOYMENT PROTECTION ACT; TO AMEND SECTION 31-5-17, MISSISSIPPI CODE OF 1972, TO REQUIRE LABOR USED ON PUBLIC WORKS TO BE PERFORMED BY WORKMEN AND LABORERS WHO ARE LEGAL CITIZENS OF THE UNITED STATES OR LEGAL ALIENS; TO AMEND SECTION 31-5-19, MISSISSIPPI CODE OF 1972, TO REQUIRE PUBLIC WORK CONTRACTS TO INCLUDE A PROVISION REQUIRING THE CONTRACTOR TO BE IN COMPLIANCE WITH FEDERAL AND STATE LAWS; TO AMEND SECTION 31-5-21, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTY FOR VIOLATING SUCH LABOR REQUIREMENTS ON PUBLIC WORKS; 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; TO PROVIDE FOR SEVERABILITY, IMPLEMENTATION AND CONSTRUCTION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Legislative intent and short title. (1) 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 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.
(2) Sections 1, 2, 3, 5, 6, 12, 13 and 14 of this act may be cited as the "Support Our Law Enforcement and Safe Neighborhoods Act."
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 stop, detention or arrest 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 in the enforcement of any other law or ordinance of a county, municipality or the state where reasonable suspicion exists that the person is an alien and 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. The immigration status of any person who is arrested shall be determined before the person is released by verification with the federal government pursuant to 8 USC Section 1373(c). A law enforcement official or agency of this state or political subdivision of this state may not 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 Title 45, Chapter 35, 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 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) In the implementation 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 USC Section 1373(c).
(6) 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.
(7) 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.
(8) 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 that limits or restricts the enforcement of federal immigration laws, including, but not limited to, 8 USC Sections 1373 and 1644, 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 Five Hundred Dollars ($500.00) 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.
(9) A court shall collect the civil penalty prescribed in subsection (8) 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 13 of Senate Bill No. 2179, 2011 Regular Session.
(10) 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.
(11) 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 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.
(12) 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 USC 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 USC Section 1373(c).
(3) A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Mississippi Constitution.
(4) 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.
(5) In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs.
(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, punishable by a fine not to exceed One Hundred Dollars ($100.00) and thirty (30) days in jail; for a first violation, the court shall not sentence the offender to more than twenty (20) days in jail.
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 that 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.
(3) A law enforcement official or agency of this state, a county or a municipality may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Mississippi Constitution.
(4) 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 USC Section 1373(c).
(5) A violation of this section is a misdemeanor.
(6) For purposes of this section, "unauthorized alien" means an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 USC Section 1324a(h)(3).
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 12 of Senate Bill No. 2179, 2011 Regular Session.
(3) A law enforcement official or agency of this state, a county or a municipality may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Mississippi Constitution.
(4) 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 USC Section 1373(c).
(5) 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.
(6) A person who violates this section is guilty of a misdemeanor and is subject to a fine in an amount of not less than 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. Section 99-3-7, Mississippi Code of 1972, is amended as follows:
99-3-7. (1) An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.
(2) Any law enforcement officer may arrest any person on a misdemeanor charge without having a warrant in his possession when a warrant is in fact outstanding for that person's arrest and the officer has knowledge through official channels that the warrant is outstanding for that person's arrest. In all such cases, the officer making the arrest must inform such person at the time of the arrest the object and cause therefor. If the person arrested so requests, the warrant shall be shown to him as soon as practicable.
(3) (a) Any law enforcement officer shall arrest a person with or without a warrant when he has probable cause to believe that the person has, within twenty-four (24) hours of such arrest, knowingly committed a misdemeanor which is an act of domestic violence or knowingly violated provisions of an ex parte protective order, protective order after hearing or court-approved consent agreement entered by a chancery, circuit, county, justice or municipal court pursuant to the Protection from Domestic Abuse Law, Sections 93-21-1 through 93-21-29, Mississippi Code of 1972, or a restraining order entered by a foreign court of competent jurisdiction to protect an applicant from domestic violence as defined by Section 97-3-7 that requires the person to refrain from further abuse or threats of abuse, to absent himself from a particular geographic area, or prohibit such person from being within a specified distance of another person or persons.
(b) If a law enforcement officer has probable cause to believe that two (2) or more persons committed a misdemeanor which is an act of domestic violence as defined herein, or if two (2) or more persons make complaints to the officer, the officer shall attempt to determine who was the principal aggressor. The term principal aggressor is defined as the party who poses the most serious ongoing threat, or who is the most significant, rather than the first, aggressor. The officer shall presume that arrest is not the appropriate response for the person or persons who were not the principal aggressor. If the officer affirmatively finds more than one (1) principal aggressor was involved, the officer shall document those findings.
(c) To determine who is the principal aggressor, the officer shall consider the following factors, although such consideration is not limited to these factors:
(i) Evidence from the persons involved in the domestic abuse;
(ii) The history of domestic abuse between the parties, the likelihood of future injury to each person, and the intent of the law to protect victims of domestic violence from continuing abuse;
(iii) Whether one (1) of the persons acted in self-defense; and
(iv) Evidence from witnesses of the domestic violence.
(d) A law enforcement officer shall not base the decision of whether to arrest on the consent or request of the victim.
(e) A law enforcement officer's determination regarding the existence of probable cause or the lack of probable cause shall not adversely affect the right of any party to independently seek appropriate remedies.
(4) (a) Any person authorized by a court of law to supervise or monitor a convicted offender who is under an intensive supervision program may arrest the offender when the offender is in violation of the terms or conditions of the intensive supervision program, without having a warrant, provided that the person making the arrest has been trained at the Law Enforcement Officers Training Academy established under Section 45-5-1 et seq., or at a course approved by the Board on Law Enforcement Officer Standards and Training.
(b) For the purposes of this subsection, the term "intensive supervision program" means an intensive supervision program of the Department of Corrections as described in Section 47-5-1001 et seq., or any similar program authorized by a court for offenders who are not under jurisdiction of the Department of Corrections.
(5) 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.
(6) As used in subsection (3) of this section, the phrase "misdemeanor which is an act of domestic violence" shall mean one or more of the following acts between current or former spouses or a child of current or former spouses, persons living as spouses or who formerly lived as spouses or a child of persons living as spouses or who formerly lived as spouses, other persons related by consanguinity or affinity who reside or formerly resided together, persons who have a current or former dating relationship, or persons who have a biological or legally adopted child together:
(a) Simple domestic violence within the meaning of Section 97-3-7;
(b) Disturbing the family or public peace within the meaning of Section 97-35-9, 97-35-11, 97-35-13 or 97-35-15; or
(c) Stalking within the meaning of Section 97-3-107.
(7) Any arrest made pursuant to subsection (3) of this section shall be designated as domestic assault or domestic violence on both the arrest docket and the incident report. Any officer investigating a complaint of a misdemeanor crime of domestic violence who finds probable cause that such an offense has occurred within the past twenty-four (24) hours shall file an affidavit on behalf of the victim(s) of the crime, regardless of whether an arrest is made within that time period. If the crime is reported or investigated outside of that twenty-four-hour period, the officer may file the affidavit on behalf of the victim. In the event the officer does not file an affidavit on behalf of the victim, the officer shall instruct the victim of the procedure for filing on his or her own behalf.
(8) A law enforcement officer shall not be held liable in any civil action for an arrest based on probable cause and in good faith pursuant to subsection (3) of this section, or failure, in good faith, to make an arrest pursuant to subsection (3) of this section.
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) "Legal alien" means an individual who was lawfully present in the United States at the time of employment and for the duration of employment, or who was permanently residing in the United States under color of law at the time of employment and for the duration of employment.
(g) "Public employer" means every department, agency or instrumentality of the state or a political subdivision of the state.
(h) "Subcontractor" means a subcontractor, contract employee, staffing agency or any contractor regardless of its tier.
(i) "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. * * * An employer that knowingly or intentionally uses a third-party employer to obtain the labor of an unauthorized alien in this state violates this subsection.
(b) (i) The Attorney General shall prescribe a complaint form for a person to allege a violation of subsection (4)(a) of this section. The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly or intentionally employs an unauthorized alien, the Attorney General or district attorney shall investigate whether the employer has violated subsection (4)(a) of this section. If a complaint is received but is not submitted on a prescribed complaint form, the Attorney General or district attorney may investigate whether the employer has violated subsection (4)(a) of this section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The Attorney General or district attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a district attorney shall be submitted to the district attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the Attorney General or district attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 USC Section 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 USC Section 1373(c).
(ii) A person who knowingly files a false or frivolous complaint under this subsection is guilty of a misdemeanor.
(c) If, after an investigation, the Attorney General or district attorney determines that the complaint is not false or frivolous:
(i) The Attorney General or district attorney shall notify United States Immigration and Customs Enforcement of the unauthorized alien.
(ii) The Attorney General or district attorney shall notify the local law enforcement agency of the unauthorized alien.
(iii) The Attorney General shall notify the appropriate district attorney to bring an action pursuant to paragraph (d) of this subsection if the complaint was originally filed with the Attorney General.
(d) An action for a violation of subsection (4)(a) of this section shall be brought against the employer by the district attorney in the county where the unauthorized alien employee is or was employed by the employer. A second violation of this section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a first violation of subsection (4)(a) of this section.
(e) For any action under this subsection, the court shall expedite the action, including assigning the hearing at the earliest practicable date.
(f) On a finding of a violation of subsection (4)(a) of this section:
(i) For a first violation as defined in this section, the court:
1. Shall order the employer to terminate the employment of all unauthorized aliens.
2. Shall order the employer to be subject to a three-year probationary period for the business location where the unauthorized alien performed work. During the probationary period, the employer shall report quarterly reports to the district attorney for each new employee who is hired by the employer at the business location where the unauthorized alien performed work the following: the name, address and social security number of each employee hired and the name, address and federal tax identification number for the employer. The district attorney shall redact all identifying information from the public record except for the employer's name and address.
3. Shall order the employer to file a signed sworn affidavit with the district attorney within three (3) business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not intentionally or knowingly employ an unauthorized alien in this state. The court shall order the appropriate agencies and entities to suspend all licenses subject to subsection (7) of this section that are held by the employer if the employer fails to file a signed sworn affidavit with the district attorney within three (3) business days after the order is issued. All licenses that are suspended under this item 3 shall remain suspended until the employer files a signed sworn affidavit with the district attorney. Notwithstanding any other law, upon filing of the affidavit, the suspended licenses shall be reinstated immediately by the appropriate agencies. For the purposes of this item 3, the licenses that are subject to suspension under subsection (7) are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this item 3 are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies and entities shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the Attorney General and the Attorney General shall maintain the copy.
4. May order the appropriate agencies to suspend all licenses described in subsection (7) of this section that are held by the employer for a period not to exceed ten (10) business days. The court shall base its decision to suspend under this item 4 on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant: The number of unauthorized aliens employed by the employer; any prior misconduct by the employer; the degree of harm resulting from the violation; whether the employer made good-faith efforts to comply with any applicable requirements; the duration of the violation; the role of the directors, officers or principals of the employer in the violation; and any other factors the court deems appropriate.
(ii) For a second violation as described in this section, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.
(iii) The violation shall be considered:
1. A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection for that employer's business location.
2. A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection for that employer's business location.
(g) The Attorney General shall maintain copies of court orders that are received pursuant to paragraph (f) of this subsection and shall maintain a database of the employers and business locations that have a first violation of subsection (4)(a) of this section and make the court orders available on the Attorney General's Web site.
(h) On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 USC Section 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 USC Section 1373(c).
(i) For the purposes of this section, proof of verifying the employment authorization of an employee through the status verification program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.
(j) For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 USC Section 1324a(b) establishes an affirmative defense that the employer did not knowingly employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 USC Section 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good-faith attempt to comply with the requirements.
(k) (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.
(l) (i) Every employer who is subject to the provisions of this chapter shall file an annual report with the State Auditor stating the number of new employees who were hired by the employer at a business location within this state. The report shall state the name, address and federal tax identification number for the employer and whether each new hire was subjected to verification of status through the status verification system.
(ii) The annual reports required by this paragraph shall be filed on the 15th of February for the preceding calendar year and shall be posted on the Auditor's Web site not later than fifteen (15) days after filing. The Auditor shall redact all identifying information from the public record except for the employer's name and address.
(ii) The annual report shall be verified under penalty of perjury.
(m) The provisions of this section shall not apply to any contracts entered into on or before July 1, 2008.
(n) (i) 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.
(ii) 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 paragraph.
(iii) No cause of action for a violation of this paragraph shall lie under any other Mississippi law but shall arise solely from the provisions of this paragraph.
(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) * * * All employers shall meet verification requirements not later than July 1, 2011.
(b) (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 paragraph shall have the right to appeal to the appropriate entity imposing sanctions or to the circuit court of competent jurisdiction.
(c) The Department of Employment Security, Department of Revenue, Secretary of State, Department of Human Services, the Attorney General and any other agency, department or government entity shall have the authority to impose sanctions or seek penalties authorized under this section * * *.
(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. Section 31-5-17, Mississippi Code of 1972, is amended as follows:
31-5-17. Every public officer, contractor, superintendent, or agent engaged in or in charge of the construction of any state or public building or public work of any kind for the State of Mississippi or for any board, city commission, governmental agency, or municipality of the State of Mississippi shall employ only workmen and laborers 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 admitted at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed (including an alien who was lawfully present in the United States as a result of the application of Section 207, 208 or 212(d)(5) of the Immigration and Nationality Act). In cases where the work is being lawfully conducted outside the United States of America, the utilization of workmen and laborers shall be in strict compliance with the laws of the country in which the work is conducted.
SECTION 10. Section 31-5-19, Mississippi Code of 1972, is amended as follows:
31-5-19. All contracts entered into by agencies and institutions of the State of Mississippi, or any of its political subdivisions, shall include a provision requiring the contractor to be in compliance during the term of the contract with all federal and state laws, including, but not limited to, Section 31-5-17. A knowing or willing failure to comply with such provision shall be grounds for cancellation by the agencies and institutions of the State of Mississippi, or any of its political subdivisions, of all contracts held with the contractor. In addition to the cancellation of the contract, the contractor 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.
SECTION 11. Section 31-5-21, Mississippi Code of 1972, is amended as follows:
31-5-21. Any contractor, public officer, superintendent, agent, or person in charge of such work, who shall violate any of the provisions of Section 31-5-17, shall be liable upon conviction before a court of competent jurisdiction to a fine of not more than One Hundred Dollars ($100.00) or to imprisonment of not more than sixty (60) days, or both, at the discretion of the court; and every day's employment of each workman or laborer in such violation shall constitute a separate offense.
However, if the contract for such work includes the provision required by Section 31-5-19 and the public officer makes a reasonable effort to ensure compliance with that provision, the public officer shall not be subject to the fine or imprisonment.
SECTION 12. 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 13. (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(a) of Senate Bill No. 2179, 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 14. All law enforcement officers of this state are authorized to assist federal agencies in the enforcement of federal immigration law.
SECTION 15. (1) If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
(2) The terms of this act regarding immigration shall be construed to have the meanings given to them under federal immigration law.
(3) This act 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.
(4) Nothing in this act shall implement or shall be construed or interpreted to implement 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.
SECTION 16. This act shall take effect and be in force from and after July 1, 2011.