April 26, 2017

HB 17-1134: Creating Civil Remedy Against Elected Officials in Sanctuary Jurisdictions

On January 30, 2017, Rep. Dave Williams and Sen. Vicki Marble introduced HB 17-1134, “Concerning Holding Colorado Government Accountable for Creating Sanctuary Jurisdiction Policies.”

The bill is known as the ‘Colorado Politician Accountability Act’.

The bill includes a legislative declaration that states that addressing sanctuary jurisdictions is a matter of statewide concern and that makes findings about how sanctuary policies are contrary to federal law and state interests.

The bill creates a civil remedy against the state or a political subdivision of the state (jurisdiction) and against its elected officials for creating sanctuary policies. The bill also creates a crime of rendering assistance to an illegal alien that can be brought against an elected official for creating a sanctuary jurisdiction.

An elected official is responsible for the creation of a sanctuary jurisdiction if the elected official votes in favor of imposing or creating a law, ordinance, or policy that allows the jurisdiction to operate as a sanctuary jurisdiction, fails to take steps to try to change a law, ordinance, or policy that allows the jurisdiction to operate as a sanctuary jurisdiction, or is a county sheriff who imposes or enforces a policy that allows the jurisdiction to operate as a sanctuary jurisdiction in a county in which the elected officials have not voted to impose or create a sanctuary jurisdiction.

The bill allows any person who claims that he or she is a victim of any crime committed by an illegal alien who established residency in a sanctuary jurisdiction to file a civil action for compensatory damages against a jurisdiction and against the elected officials of the jurisdiction who were responsible for creating the policy to operate as a sanctuary jurisdiction. Notwithstanding the protections of the ‘Colorado Governmental Immunity Act’, the jurisdiction and its officials who are responsible for creating a sanctuary jurisdiction are civilly liable for damages if the person who engaged in the criminal activity:

  • Is determined to be an illegal alien;
  • Had established residency in the sanctuary jurisdiction; and
  • Is convicted of the crime that is a proximate cause of the injury to a person or property.

The maximum amount of compensatory damages for injury to persons is $700,000 per person or $1,980,000 for injury to 2 or more persons; except that no person may recover in excess of $700,000. The maximum amount of compensatory damages for injury to property is set at $350,000 per person or $990,000 for injury to multiple persons; except that no person may recover in excess of $350,000.

The bill defines a ‘sanctuary jurisdiction’ as a jurisdiction that adopts a law, ordinance, or policy on or after the effective date of this bill that prohibits or in any way restricts an official or employee of the jurisdiction from:

  • Cooperating and complying with federal immigration officials or enforcing federal immigration law;
  • Sending to or receiving from or requesting from federal immigration officials information regarding the citizenship or immigration status, lawful or unlawful, of an individual;
  • Maintaining or exchanging information about an individual’s immigration status, lawful or unlawful, with other federal agencies, state agencies, or municipalities;
  • Inquiring about an individual’s name, date and place of birth, and immigration status while enforcing or conducting an official investigation into a violation of any law of this state;
  • Continuing to detain an individual, regardless of the individual’s ability to be released on bail, who has been identified as an illegal alien while in custody for violating any state law; or
  • Verifying the lawful presence and eligibility of a person applying for a state or local public benefit as required by state and federal law.

The bill sets forth the requirements for determining when an illegal alien has established residency in a sanctuary jurisdiction. An ‘illegal alien’ is defined as a person who is not lawfully present within the United States, as determined by federal immigration law.

The governing body of any jurisdiction is prohibited from adopting a law, ordinance, rule, policy, or plan or taking any action that limits or prohibits an elected official, employee, or law enforcement officer from communicating or cooperating with an appropriate public official, employee, or law enforcement officer of the federal government concerning the immigration status of an individual residing in the state. The governing body of a jurisdiction is required to provide written notice to each elected official, employee, and law enforcement officer of the jurisdiction of his or her duty to communicate and cooperate with the federal government concerning enforcement of any federal or state immigration law. The governing body of any jurisdiction in this state is required to annually submit a written report to the department of public safety (department) that the jurisdiction is in compliance with the cooperation and communication requirements. If the department does not receive those written reports, the department is required to provide the name of that jurisdiction to the state controller.

A law enforcement officer of a jurisdiction who has reasonable cause to believe that an individual under arrest is not lawfully present in the United States shall immediately report the individual to the appropriate U.S. immigration and customs enforcement office (ICE) within the department of homeland security. The governing body of any jurisdiction is required to report annually to the department on the number of individuals who were reported to ICE by law enforcement officers from that jurisdiction. The department is directed to compile and submit annual reports on compliance to the general assembly and to the state controller. The state controller is required to withhold the payment of any state funds to any jurisdiction that is found by the department to have failed to comply with these reporting requirements. The state controller shall withhold funds until the department notifies the state controller that the jurisdiction is in compliance.

The bill creates the crime of rendering assistance to an illegal alien through a sanctuary jurisdiction, which is a class 4 felony. A person who is an elected official of a jurisdiction commits rendering assistance to an illegal alien through a sanctuary jurisdiction if, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of illegal aliens within the jurisdiction:

  • He or she was responsible for creating a sanctuary jurisdiction in the jurisdiction to which the official is elected; and
  • When, as a result of the protection afforded by a sanctuary jurisdiction, a third person engages in criminal activity and the third person:
  • Is an illegal alien as legally defined by federal immigration law;
  • Had established residency in the sanctuary jurisdiction that was created by the official; and
  • Has been convicted of a crime that caused injury to a person or to property.

A person who has knowledge of a crime committed by an illegal alien as a result of the creation of a sanctuary jurisdiction may file an affidavit with the attorney general or with a district attorney outlining the crime and requesting that charges be brought or that a grand jury be impaneled. The attorney general or district attorney shall investigate and respond in writing with his or her decision to the person filing the affidavit within 49 days. If the attorney general or district attorney declines to bring charges or impanel a grand jury, the person may file a second affidavit directly with the applicable court.

The bill includes a severability clause and a provision that states that the bill is not subject to judicial review.

The bill takes effect upon passage and applies to acts or omissions occurring on or after said date.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs and Judiciary committees. It is scheduled to be heard in the State, Veterans, and Military Affairs committee on February 22, 2017, at 1:30 p.m.

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