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HomeMy WebLinkAboutBOARD STANDING COMMITTEES - 11052018 - PPC Agenda PktPUBLIC PROTECTION COMMITTEE November 5, 2018 10:30 A.M. 651 Pine Street, Room 107, Martinez Supervisor John Gioia, Chair Supervisor Federal D. Glover, Vice Chair Agenda Items: Items may be taken out of order based on the business of the day and preference of the Committee 1.Introductions 2.Public comment on any item under the jurisdiction of the Committee and not on this agenda (speakers may be limited to three minutes). 3.APPROVE Record of Action from the October 1, 2018 meeting. (Page 4) 4.CONSIDER accepting reports from staff related to various immigration related issues, including compliance with state and federal law, status of federal litigation and correspondence with the U.S. Department of Justice related to federal grants. (Paul Reyes, Committee Staff) (Page 7) 5.CONSIDER introducing a referral on banning gun shows at the Contra Costa County Fairgrounds and a review of regulations governing the purchase and sale of guns at gun shows and provide direction to staff. (Paul Reyes, Committee Staff) (Page 245) 6.CONSIDER recommending nominees for appointment to the CY2019 Community Corrections Partnership (CCP) and CY2019 Community Corrections Partnership Executive Committee. (Paul Reyes, Committee Staff) (Page 251) 7.CONSIDER accepting an update about the most recent activities of the Racial Justice Task Force. (Donte Blue, Deputy Director ORJ)(Page 259) 8.The next meeting is currently scheduled for Tuesday, November 13, 2018 at 4:00 PM. 9.Adjourn The Public Protection Committee will provide reasonable accommodations for persons with disabilities planning to attend Public Protection Committee meetings. Contact the staff person listed below at least 72 hours before the meeting. Any disclosable public records related to an open session item on a regular meeting agenda and distributed by the County to a majority of members of the Public Protection Committee less than 96 hours prior to that meeting are available for public inspection at 651 Pine Street, 10th floor, during normal business hours. Public comment may be submitted via electronic mail on agenda items at least one full work day prior to the published meeting time. For Additional Information Contact: Paul Reyes, Committee Staff Phone (925) 335-1096, Fax (925) 646-1353 paul.reyes@cao.cccounty.us PUBLIC PROTECTION COMMITTEE 3. Meeting Date:11/05/2018   Subject:RECORD OF ACTION - October 1, 2018 Department:County Administrator Referral No.: N/A   Referral Name: RECORD OF ACTION - October 1, 2018  Presenter: Paul Reyes, Committee Staff Contact: Paul Reyes, (925) 335-1096 Referral History: County Ordinance requires that each County body keep a record of its meetings. Though the record need not be verbatim, it must accurately reflect the agenda and the decisions made in the meeting. Referral Update: Attached for the Committee's consideration is the Record of Action for its October 1, 2018 meeting. Recommendation(s)/Next Step(s): APPROVE Record of Action from the October 1, 2018 meeting. Fiscal Impact (if any): No fiscal impact. This item is informational only. Attachments Record of Action - October 2018 Page 4 of 363 PUBLIC PROTECTION COMMITTEE ***RECORD OF ACTION*** October 1, 2018 10:30 A.M. 651 Pine Street, Room 101, Martinez Supervisor John Gioia, Chair Supervisor Federal D. Glover, Vice Chair Agenda Items:Items may be taken out of order based on the business of the day and preference of the Committee   Present: John Gioia, Chair Absent: Federal D. Glover, Vice Chair Staff Present:Paul Reyes, Committee Staff                  1.Introductions    Convene - 9:33 AM    AYE: Chair John Gioia Other: Vice Chair Federal D. Glover (ABSENT) Passed 2.Public comment on any item under the jurisdiction of the Committee and not on this agenda (speakers may be limited to three minutes).    No public comment.   3.APPROVE Record of Action from the September 10, 2018 meeting.      Approved as presented.    AYE: Chair John Gioia Other: Vice Chair Federal D. Glover (ABSENT) Passed 4.1. ACCEPT a report on juvenile justice advisory bodies within the County; and 2. PROVIDE direction to staff.       Approved as presented with the following direction to staff: Page 5 of 363  Approved as presented with the following direction to staff: 1. To return to the Board of Supervisors to combine the functions of the Delinquency Prevention Committee and the Juvenile Justice Coordinating Council; and 2. Update the seats of the existing Juvenile Justice Coordinating Council to include: Chief Probation Officer, District Attorney's Office representative, Public Defender's Office representative, Sheriff's Office representative, Board of Supervisors representative, Employment and Human Services Department representative, Behavior Health representative, County Alcohol and Drugs representative, City Police Department Representative, County Office of Education or a school district representative, County Public Health representative, and Eight community-based seats, including a minimum of two representing youth-serving community-based organizations and two youth-aged community representatives (14-21 years old).    AYE: Chair John Gioia Other: Vice Chair Federal D. Glover (ABSENT) Passed 5.The next meeting is currently scheduled for November 5, 2018 at 10:30 AM.   6.Adjourn    Adjourned at 11:26 AM     The Public Protection Committee will provide reasonable accommodations for persons with disabilities planning to attend Public Protection Committee meetings. Contact the staff person listed below at least 72 hours before the meeting. Any disclosable public records related to an open session item on a regular meeting agenda and distributed by the County to a majority of members of the Public Protection Committee less than 96 hours prior to that meeting are available for public inspection at 651 Pine Street, 10th floor, during normal business hours. Public comment may be submitted via electronic mail on agenda items at least one full work day prior to the published meeting time. For Additional Information Contact: Paul Reyes, Committee Staff Phone (925) 335-1096, Fax (925) 646-1353 paul.reyes@cao.cccounty.us Page 6 of 363 PUBLIC PROTECTION COMMITTEE 4. Meeting Date:11/05/2018   Subject:COUNTY LAW ENFORCEMENT PARTICIPATION AND INTERACTION WITH FEDERAL IMMIGRATION AUTHORITIES Department:County Administrator Referral No.: N/A   Referral Name: COUNTY LAW ENFORCEMENT PARTICIPATION AND INTERACTION WITH FEDERAL IMMIGRATION AUTHORITIES  Presenter: Paul Reyes, 925-335-1096 Contact: Paul Reyes, 925-335-1096 Referral History: On February 7, 2017, the Board of Supervisors referred to the Public Protection Committee the topic of law enforcement participation and interaction with Federal immigration authorities. A copy of the Board's referral is attached for reference. Subsequently, the PPC introduced this referral at it's March 2017 meeting, primarily to discuss Senate Bill 54 (De Leon), which at the time was newly introduced in the Legislature. The Committee directed the County Probation Department to have County Counsel review the current policy on immigration (including cooperation with the federal government and serving clients that are undocumented residents of the County) and return to the Committee with an update. In addition, the Committee requested a review of the Sheriff's Office contract with the US Marshal service, which is also used by the Department of Homeland Security - Immigration and Customs Enforcement (ICE) to house undocumented individuals who are in the custody of the federal government. The Committee had not heard an update on this issue, pending the outcome of SB 54, which ultimately was passed by the Legislature and signed into law by Governor Brown earlier this year. Following its passage and enrollment, the Probation Department and Sheriff's Office have worked with County Counsel proactively to ensure that the County is in compliance with the requirements of the new law. Federal Grant Requirements and Related Legal Challenges Following the March 2017 meeting of the Committee, the US Department of Justice began conditioning certain federal grant awards to state and local governments on the cooperation with federal immigration authorities. This has been rolled out in the form of 1) requesting the jurisdictions receiving grants to self certify (under penalty of perjury by the Chief Legal Officer, in our case County Counsel) that the jurisdiction is in compliance with the conditions of 8 USC 1373, and 2) that the jurisdiction would honor 48-hour detainer requests for undocumented Page 7 of 363 individuals already in local custody for separate criminal law violations. Neither the Probation Department nor the Sheriff's Office honor detainer requests from the federal government and have not done so for several years. There have been several legal challenges to the Administration's various actions on immigration. Most notably with regard to the withholding of funding from state and local governments is City of Chicago vs. Sessions III, where a nationwide injunction has been ordered against the new regulations sought to be imposed by the USDOJ. An article from the Chicago Tribune has been included in today's packet for additional information. Also, a coalition of local jurisdictions nationwide, including cities and counties, filed an amicus brief in City of Philadelphia vs. Sessions III on October 19th of this year in support of the City's motion for preliminary injunction. In this case, the City is largely requesting an injunction very similar to that ordered in the Chicago case. A copy of the brief is included in today's packet for reference. Potential for Financial Impact to the County As the legal challenges described above progress, the County will continue to be mindful of the potential impacts to County programs. At first glance, it may be easy to determine that any financial impact from the change in federal policy would only impact law enforcement activities; however, several County departments receive funding from USDOJ and DHS. The summary below illustrates a worst case scenario to the County - that is, that all grant funds from both federal agencies are discontinued. The federal government has been choosing certain grants to apply the new regulations to, but there generally does not seem to be a specific criteria used to determine what grants the regulations may be applied to. For this reason, it is highly unlikely that the entire $24.7 million could be impacted, but in the interest of proactively understanding the portfolio of grants maintained by the County, staff prepared this chart as a tool for discussion purposes. On November 6, 2017, the Committee received an update on this referral and directed staff to schedule a special meeting in December for followup. Specifically, staff presented a report on how the County is working proactively to ensure smooth implementation of the requirements of SB 54, to the extent that the County does not already meet those requirements. This included an analysis by County Counsel of the current policies for each department against the new requirements of SB 54 for easy reference. The Committee asked for an updated version of the Page 8 of 363 analysis for the December meeting, which is included in today's packet. Also, the actual policies from both the Sheriff's Office and the Probation Department (draft) were included for reference. In addition, Committee staff provided a brief overview on the issues related to the potential financial impacts from US DOJ and DHS grant conditions on certain federal grant awards. The Committee also discussed the Sheriff's Office contract with the US Marshal services, which is used by ICE to house detainees currently in the custody of the federal government and requested a copy of the contract be included in the December packet for reference. On December 7, 2017, the Committee received an update on various, ongoing litigation items across the country and the status of updates to the immigration policies of the Sheriff's Office and Probation Department. In addition, County Counsel prepared an updated analysis of existing policies and Committee staff included a copy of the interagency agreement between the US Marshal Service and the Sheriff's Office for review. The US Marshal contract is used by the Immigration and Customs Enforcement (ICE) Agency to house undocumented detainees that are already in the custody of the federal government in County jail facilities. The Committee requested that the issue return at the February 5, 2018 Committee meeting for an update. On February 5, 2018, staff updated the Committee on various litigation related to immigration across the nation and reported on the County's compliance with SB 54 following the January 1, 2018 effective date. In addition, staff reported that the U.S. Department of Justice appears to be satisfied with the County's revised immigration policy in the Sheriff's Office, which strikes a balance with complying with both federal and state law. Also, the Public Defender's Office provided an update on efforts to launch the County's Stand Together Contra Costa program, which provide various services to undocumented residents in the County seeking assistance. Following discussion, the Committee directed staff to return to return to the next meeting with information related to the public forum required under the TRUTH Act and a litigation update. On April 12, 2018, staff provided an update regarding the TRUTH Act community forum determination process. In addition, the Committee directed County Counsel to review a letter submitted by the Asian Law Caucus to Sheriff David Livingston on the evening prior to the meeting regarding the Sheriff's Immigration Status Policy. On May 23, 2018, staff provided an update regarding the due diligence process undertaken to determine whether or not the County was required to hold a TRUTH Act community forum. Staff informed the Committee that, based on responses from County department heads, it is necessary to hold a community forum and the forum had been scheduled for Tuesday, July 24, 2018 at 2:00PM. On June 25, 2018, staff provided an update on the TRUTH Act community forum, specifically with regard to the format. In addition, County Counsel updated the Committee on the various litigation items still outstanding throughout the country related to immigration. On August 6, 2018, staff provided a follow up on the TRUTH Act community forum, including the request of the Sheriff's Office to provide further details on the 63 individuals that the U.S. Immigration and Customs Enforcement (ICE) was provided information about. Staff also provided additional detail about the types of exempt offenses that would allow local law enforcement to provide information about an individual to ICE. County Counsel updated the Committee on the various litigation items still outstanding throughout the country related to immigration. Page 9 of 363 On September 10, 2018, County Counsel provided an update on various litigation items still outstanding throughout the county related to immigration.  Referral Update: Staff will be present to provide an update on the following item: 1. Various litigation items being tracked by the Committee related to immigration. Recommendation(s)/Next Step(s): 1. ACCEPT reports from staff related to various immigration related issues, including compliance with state and federal law, status of federal litigation and correspondence with the U.S. Department of Justice related to federal grants. 2. PROVIDE direction to staff on next steps. Attachments Board of Supervisors' Referral Senate Bill 54 (De León), Chapter 495 Statutes of 2017 Senate Bill 54 (De León) - Redline of Existing Law Senate Bill 54 Analysis - County Counsel  Chicago Tribune Article, October 13, 2017 Brief of Amici Curiae - City of Philadelphia vs Sessions III, filed October 19, 2017 Letter from USDOJ to Contra Costa re: 8 USC 1373 Compliance  Interagency Service Agreement ICE w/ Amendments Probation Department Immigration Policy Sheriff's Office Immigration Policy Stand Together CoCo - Partner Advisory Letter Letter from Asian Law Caucus to Sheriff David O. Livingston, April 12, 2018 County Counsel Response to Letter from Asian Law Caucus, May 23, 2018 Practice Advisory, SB 54 and the California Values Act: A Guide for Criminal Defenders, February 2018 Page 10 of 363 RECOMMENDATION(S): REFER the issue of Contra Costa County law enforcement participation and interaction with federal immigration authorities to the Public Protection Committee. FISCAL IMPACT: None. BACKGROUND: There has been growing public concern around the county, especially among immigrant communities, about the nature of local law enforcement interaction with federal immigration authorities. This concern has been increasing due to the current political environment and has impacted the willingness of residents of immigrant communities to access certain health and social services provided by community-based organizations. For example, the Executive Director of Early Childhood Mental Health has reported that a number of Latino families have canceled mental health appointments for their children due to concerns over APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 02/07/2017 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Candace Andersen, District II Supervisor Diane Burgis, District III Supervisor Karen Mitchoff, District IV Supervisor Federal D. Glover, District V Supervisor Contact: Supervisor John Gioia (510) 231-8686 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: February 7, 2017 , County Administrator and Clerk of the Board of Supervisors By: Stephanie Mello, Deputy cc: C. 97 To:Board of Supervisors From:John Gioia, District I Supervisor Date:February 7, 2017 Contra Costa County Subject:REFERRAL TO PUBLIC PROTECTION COMMITTEE OF COUNTY LAW ENFORCEMENT PARTICIPATION AND INTERACTION WITH FEDERAL IMMIGRATION AUTHORITIES Page 11 of 363 being deported. It is timely and in the public interest to refer this issue to the Public Protection Committee. Page 12 of 363 Senate Bill No. 54 CHAPTER 495 An act to amend Sections 7282 and 7282.5 of, and to add Chapter 17.25 (commencing with Section 7284) to Division 7 of Title 1 of, the Government Code, and to repeal Section 11369 of the Health and Safety Code, relating to law enforcement. [Approved by Governor October 5, 2017. Filed with Secretary of State October 5, 2017.] legislative counsel’s digest SB 54, De León. Law enforcement: sharing data. Existing law provides that when there is reason to believe that a person arrested for a violation of specified controlled substance provisions may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters. This bill would repeal those provisions. Existing law provides that whenever an individual who is a victim of or witness to a hate crime, or who otherwise can give evidence in a hate crime investigation, is not charged with or convicted of committing any crime under state law, a peace officer may not detain the individual exclusively for any actual or suspected immigration violation or report or turn the individual over to federal immigration authorities. This bill would, among other things and subject to exceptions, prohibit state and local law enforcement agencies, including school police and security departments, from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, as specified, and would, subject to exceptions, proscribe other activities or conduct in connection with immigration enforcement by law enforcement agencies. The bill would apply those provisions to the circumstances in which a law enforcement official has discretion to cooperate with immigration authorities. The bill would require, by October 1, 2018, the Attorney General, in consultation with the appropriate stakeholders, to publish model policies limiting assistance with immigration enforcement to the fullest extent possible for use by public schools, public libraries, health facilities operated by the state or a political subdivision of the state, and courthouses, among others. The bill would require, among others, all public schools, health facilities operated by the state or a political subdivision of the state, and courthouses to implement the model policy, or an equivalent policy. The bill would state that, among others, all other organizations and entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California, are encouraged to adopt the model policy. The bill would require 90 Page 13 of 363 that a law enforcement agency that chooses to participate in a joint law enforcement task force, as defined, submit a report annually pertaining to task force operations to the Department of Justice, as specified. The bill would require the Attorney General, by March 1, 2019, and annually thereafter, to report on the types and frequency of joint law enforcement task forces, and other information, as specified, and to post those reports on the Attorney General’s Internet Web site. The bill would require law enforcement agencies to report to the department annually regarding transfers of persons to immigration authorities. The bill would require the Attorney General to publish guidance, audit criteria, and training recommendations regarding state and local law enforcement databases, for purposes of limiting the availability of information for immigration enforcement, as specified. The bill would require the Department of Corrections and Rehabilitation to provide a specified written consent form in advance of any interview between a person in department custody and the United States Immigration and Customs Enforcement regarding civil immigration violations. This bill would state findings and declarations of the Legislature relating to these provisions. By imposing additional duties on public schools and local law enforcement agencies, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. The people of the State of California do enact as follows: SECTION 1. Section 7282 of the Government Code is amended to read: 7282. For purposes of this chapter, the following terms have the following meanings: (a)  “Conviction” shall have the same meaning as subdivision (d) of Section 667 of the Penal Code. (b)  “Eligible for release from custody” means that the individual may be released from custody because one of the following conditions has occurred: (1)  All criminal charges against the individual have been dropped or dismissed. (2)  The individual has been acquitted of all criminal charges filed against him or her. (3)  The individual has served all the time required for his or her sentence. (4)  The individual has posted a bond. (5)  The individual is otherwise eligible for release under state or local law, or local policy. 90 — 2 —Ch. 495 Page 14 of 363 (c)  “Hold request,” “notification request,” and “transfer request” have the same meanings as provided in Section 7283. Hold, notification, and transfer requests include requests issued by the United States Immigration and Customs Enforcement or the United States Customs and Border Protection as well as any other immigration authorities. (d)  “Law enforcement official” means any local agency or officer of a local agency authorized to enforce criminal statutes, regulations, or local ordinances or to operate jails or to maintain custody of individuals in jails, and any person or local agency authorized to operate juvenile detention facilities or to maintain custody of individuals in juvenile detention facilities. (e)  “Local agency” means any city, county, city and county, special district, or other political subdivision of the state. (f)  “Serious felony” means any of the offenses listed in subdivision (c) of Section 1192.7 of the Penal Code and any offense committed in another state which, if committed in California, would be punishable as a serious felony as defined by subdivision (c) of Section 1192.7 of the Penal Code. (g)  “Violent felony” means any of the offenses listed in subdivision (c) of Section 667.5 of the Penal Code and any offense committed in another state which, if committed in California, would be punishable as a violent felony as defined by subdivision (c) of Section 667.5 of the Penal Code. SEC. 2. Section 7282.5 of the Government Code is amended to read: 7282.5. (a)  A law enforcement official shall have discretion to cooperate with immigration authorities only if doing so would not violate any federal, state, or local law, or local policy, and where permitted by the California Values Act (Chapter 17.25 (commencing with Section 7284)). Additionally, the specific activities described in subparagraph (C) of paragraph (1) of subdivision (a) of, and in paragraph (4) of subdivision (a) of, Section 7284.6 shall only occur under the following circumstances: (1)  The individual has been convicted of a serious or violent felony identified in subdivision (c) of Section 1192.7 of, or subdivision (c) of Section 667.5 of, the Penal Code. (2)  The individual has been convicted of a felony punishable by imprisonment in the state prison. (3)  The individual has been convicted within the past five years of a misdemeanor for a crime that is punishable as either a misdemeanor or a felony for, or has been convicted within the last 15 years of a felony for, any of the following offenses: (A)  Assault, as specified in, but not limited to, Sections 217.1, 220, 240, 241.1, 241.4, 241.7, 244, 244.5, 245, 245.2, 245.3, 245.5, 4500, and 4501 of the Penal Code. (B)  Battery, as specified in, but not limited to, Sections 242, 243.1, 243.3, 243.4, 243.6, 243.7, 243.9, 273.5, 347, 4501.1, and 4501.5 of the Penal Code. (C)  Use of threats, as specified in, but not limited to, Sections 71, 76, 139, 140, 422, 601, and 11418.5 of the Penal Code. (D)  Sexual abuse, sexual exploitation, or crimes endangering children, as specified in, but not limited to, Sections 266, 266a, 266b, 266c, 266d, 90 Ch. 495— 3 — Page 15 of 363 266f, 266g, 266h, 266i, 266j, 267, 269, 288, 288.5, 311.1, 311.3, 311.4, 311.10, 311.11, and 647.6 of the Penal Code. (E)  Child abuse or endangerment, as specified in, but not limited to, Sections 270, 271, 271a, 273a, 273ab, 273d, 273.4, and 278 of the Penal Code. (F)  Burglary, robbery, theft, fraud, forgery, or embezzlement, as specified in, but not limited to, Sections 211, 215, 459, 463, 470, 476, 487, 496, 503, 518, 530.5, 532, and 550 of the Penal Code. (G)  Driving under the influence of alcohol or drugs, but only for a conviction that is a felony. (H)  Obstruction of justice, as specified in, but not limited to, Sections 69, 95, 95.1, 136.1, and 148.10 of the Penal Code. (I)  Bribery, as specified in, but not limited to, Sections 67, 67.5, 68, 74, 85, 86, 92, 93, 137, 138, and 165 of the Penal Code. (J)  Escape, as specified in, but not limited to, Sections 107, 109, 110, 4530, 4530.5, 4532, 4533, 4534, 4535, and 4536 of the Penal Code. (K)  Unlawful possession or use of a weapon, firearm, explosive device, or weapon of mass destruction, as specified in, but not limited to, Sections 171b, 171c, 171d, 246, 246.3, 247, 417, 417.3, 417.6, 417.8, 4574, 11418, 11418.1, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.55, 18745, 18750, and 18755 of, and subdivisions (c) and (d) of Section 26100 of, the Penal Code. (L)  Possession of an unlawful deadly weapon, under the Deadly Weapons Recodification Act of 2010 (Part 6 (commencing with Section 16000) of the Penal Code). (M)  An offense involving the felony possession, sale, distribution, manufacture, or trafficking of controlled substances. (N)  Vandalism with prior convictions, as specified in, but not limited to, Section 594.7 of the Penal Code. (O)  Gang-related offenses, as specified in, but not limited to, Sections 186.22, 186.26, and 186.28 of the Penal Code. (P)  An attempt, as defined in Section 664 of, or a conspiracy, as defined in Section 182 of, the Penal Code, to commit an offense specified in this section. (Q)  A crime resulting in death, or involving the personal infliction of great bodily injury, as specified in, but not limited to, subdivision (d) of Section 245.6 of, and Sections 187, 191.5, 192, 192.5, 12022.7, 12022.8, and 12022.9 of, the Penal Code. (R)  Possession or use of a firearm in the commission of an offense. (S)  An offense that would require the individual to register as a sex offender pursuant to Section 290, 290.002, or 290.006 of the Penal Code. (T)  False imprisonment, slavery, and human trafficking, as specified in, but not limited to, Sections 181, 210.5, 236, 236.1, and 4503 of the Penal Code. (U)  Criminal profiteering and money laundering, as specified in, but not limited to, Sections 186.2, 186.9, and 186.10 of the Penal Code. 90 — 4 —Ch. 495 Page 16 of 363 (V)  Torture and mayhem, as specified in, but not limited to, Section 203 of the Penal Code. (W)  A crime threatening the public safety, as specified in, but not limited to, Sections 219, 219.1, 219.2, 247.5, 404, 404.6, 405a, 451, and 11413 of the Penal Code. (X)  Elder and dependent adult abuse, as specified in, but not limited to, Section 368 of the Penal Code. (Y)  A hate crime, as specified in, but not limited to, Section 422.55 of the Penal Code. (Z)  Stalking, as specified in, but not limited to, Section 646.9 of the Penal Code. (AA)  Soliciting the commission of a crime, as specified in, but not limited to, subdivision (c) of Section 286 of, and Sections 653j and 653.23 of, the Penal Code. (AB)  An offense committed while on bail or released on his or her own recognizance, as specified in, but not limited to, Section 12022.1 of the Penal Code. (AC)  Rape, sodomy, oral copulation, or sexual penetration, as specified in, but not limited to, paragraphs (2) and (6) of subdivision (a) of Section 261 of, paragraphs (1) and (4) of subdivision (a) of Section 262 of, Section 264.1 of, subdivisions (c) and (d) of Section 286 of, subdivisions (c) and (d) of Section 288a of, and subdivisions (a) and (j) of Section 289 of, the Penal Code. (AD)  Kidnapping, as specified in, but not limited to, Sections 207, 209, and 209.5 of the Penal Code. (AE)  A violation of subdivision (c) of Section 20001 of the Vehicle Code. (4)  The individual is a current registrant on the California Sex and Arson Registry. (5)  The individual has been convicted of a federal crime that meets the definition of an aggravated felony as set forth in subparagraphs (A) to (P), inclusive, of paragraph (43) of subsection (a) of Section 101 of the federal Immigration and Nationality Act (8 U.S.C. Sec. 1101), or is identified by the United States Department of Homeland Security’s Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant. (6)  In no case shall cooperation occur pursuant to this section for individuals arrested, detained, or convicted of misdemeanors that were previously felonies, or were previously crimes punishable as either misdemeanors or felonies, prior to passage of the Safe Neighborhoods and Schools Act of 2014 as it amended the Penal Code. (b)  In cases in which the individual is arrested and taken before a magistrate on a charge involving a serious or violent felony, as identified in subdivision (c) of Section 1192.7 or subdivision (c) of Section 667.5 of the Penal Code, respectively, or a felony that is punishable by imprisonment in state prison, and the magistrate makes a finding of probable cause as to that charge pursuant to Section 872 of the Penal Code, a law enforcement official shall additionally have discretion to cooperate with immigration 90 Ch. 495— 5 — Page 17 of 363 officials pursuant to subparagraph (C) of paragraph (1) of subdivision (a) of Section 7284.6. SEC. 3. Chapter 17.25 (commencing with Section 7284) is added to Division 7 of Title 1 of the Government Code, to read: Chapter 17.25. Cooperation with Immigration Authorities 7284. This chapter shall be known, and may be cited, as the California Values Act. 7284.2. The Legislature finds and declares the following: (a)  Immigrants are valuable and essential members of the California community. Almost one in three Californians is foreign born and one in two children in California has at least one immigrant parent. (b)  A relationship of trust between California’s immigrant community and state and local agencies is central to the public safety of the people of California. (c)  This trust is threatened when state and local agencies are entangled with federal immigration enforcement, with the result that immigrant community members fear approaching police when they are victims of, and witnesses to, crimes, seeking basic health services, or attending school, to the detriment of public safety and the well-being of all Californians. (d)  Entangling state and local agencies with federal immigration enforcement programs diverts already limited resources and blurs the lines of accountability between local, state, and federal governments. (e)  State and local participation in federal immigration enforcement programs also raises constitutional concerns, including the prospect that California residents could be detained in violation of the Fourth Amendment to the United States Constitution, targeted on the basis of race or ethnicity in violation of the Equal Protection Clause, or denied access to education based on immigration status. See Sanchez Ochoa v. Campbell, et al. (E.D. Wash. 2017) 2017 WL 3476777; Trujillo Santoya v. United States, et al. (W.D. Tex. 2017) 2017 WL 2896021; Moreno v. Napolitano (N.D. Ill. 2016) 213 F. Supp. 3d 999; Morales v. Chadbourne (1st Cir. 2015) 793 F.3d 208; Miranda-Olivares v. Clackamas County (D. Or. 2014) 2014 WL 1414305; Galarza v. Szalczyk (3d Cir. 2014) 745 F.3d 634. (f)  This chapter seeks to ensure effective policing, to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments. (g)  It is the intent of the Legislature that this chapter shall not be construed as providing, expanding, or ratifying any legal authority for any state or local law enforcement agency to participate in immigration enforcement. 7284.4. For purposes of this chapter, the following terms have the following meanings: (a)  “California law enforcement agency” means a state or local law enforcement agency, including school police or security departments. 90 — 6 —Ch. 495 Page 18 of 363 “California law enforcement agency” does not include the Department of Corrections and Rehabilitation. (b)  “Civil immigration warrant” means any warrant for a violation of federal civil immigration law, and includes civil immigration warrants entered in the National Crime Information Center database. (c)  “Immigration authority” means any federal, state, or local officer, employee, or person performing immigration enforcement functions. (d)  “Health facility” includes health facilities as defined in Section 1250 of the Health and Safety Code, clinics as defined in Sections 1200 and 1200.1 of the Health and Safety Code, and substance abuse treatment facilities. (e)  “Hold request,” “notification request,” “transfer request,” and “local law enforcement agency” have the same meaning as provided in Section 7283. Hold, notification, and transfer requests include requests issued by United States Immigration and Customs Enforcement or United States Customs and Border Protection as well as any other immigration authorities. (f)  “Immigration enforcement” includes any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal civil immigration law, and also includes any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal criminal immigration law that penalizes a person’s presence in, entry, or reentry to, or employment in, the United States. (g)  “Joint law enforcement task force” means at least one California law enforcement agency collaborating, engaging, or partnering with at least one federal law enforcement agency in investigating federal or state crimes. (h)  “Judicial probable cause determination” means a determination made by a federal judge or federal magistrate judge that probable cause exists that an individual has violated federal criminal immigration law and that authorizes a law enforcement officer to arrest and take into custody the individual. (i)  “Judicial warrant” means a warrant based on probable cause for a violation of federal criminal immigration law and issued by a federal judge or a federal magistrate judge that authorizes a law enforcement officer to arrest and take into custody the person who is the subject of the warrant. (j)  “Public schools” means all public elementary and secondary schools under the jurisdiction of local governing boards or a charter school board, the California State University, and the California Community Colleges. (k)  “School police and security departments” includes police and security departments of the California State University, the California Community Colleges, charter schools, county offices of education, schools, and school districts. 7284.6. (a)  California law enforcement agencies shall not: (1)  Use agency or department moneys or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including any of the following: (A)  Inquiring into an individual’s immigration status. (B)  Detaining an individual on the basis of a hold request. 90 Ch. 495— 7 — Page 19 of 363 (C)  Providing information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a notification request from immigration authorities in accordance with Section 7282.5. Responses are never required, but are permitted under this subdivision, provided that they do not violate any local law or policy. (D)  Providing personal information, as defined in Section 1798.3 of the Civil Code, about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public. (E)  Making or intentionally participating in arrests based on civil immigration warrants. (F)  Assisting immigration authorities in the activities described in Section 1357(a)(3) of Title 8 of the United States Code. (G)  Performing the functions of an immigration officer, whether pursuant to Section 1357(g) of Title 8 of the United States Code or any other law, regulation, or policy, whether formal or informal. (2)  Place peace officers under the supervision of federal agencies or employ peace officers deputized as special federal officers or special federal deputies for purposes of immigration enforcement. All peace officers remain subject to California law governing conduct of peace officers and the policies of the employing agency. (3)  Use immigration authorities as interpreters for law enforcement matters relating to individuals in agency or department custody. (4)  Transfer an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination, or in accordance with Section 7282.5. (5)  Provide office space exclusively dedicated for immigration authorities for use within a city or county law enforcement facility. (6)  Contract with the federal government for use of California law enforcement agency facilities to house individuals as federal detainees, except pursuant to Chapter 17.8 (commencing with Section 7310). (b)  Notwithstanding the limitations in subdivision (a), this section does not prevent any California law enforcement agency from doing any of the following that does not violate any policy of the law enforcement agency or any local law or policy of the jurisdiction in which the agency is operating: (1)  Investigating, enforcing, or detaining upon reasonable suspicion of, or arresting for a violation of, Section 1326(a) of Title 8 of the United States Code that may be subject to the enhancement specified in Section 1326(b)(2) of Title 8 of the United States Code and that is detected during an unrelated law enforcement activity. Transfers to immigration authorities are permitted under this subsection only in accordance with paragraph (4) of subdivision (a). (2)  Responding to a request from immigration authorities for information about a specific person’s criminal history, including previous criminal arrests, convictions, or similar criminal history information accessed through 90 — 8 —Ch. 495 Page 20 of 363 the California Law Enforcement Telecommunications System (CLETS), where otherwise permitted by state law. (3)  Conducting enforcement or investigative duties associated with a joint law enforcement task force, including the sharing of confidential information with other law enforcement agencies for purposes of task force investigations, so long as the following conditions are met: (A)  The primary purpose of the joint law enforcement task force is not immigration enforcement, as defined in subdivision (f) of Section 7284.4. (B)  The enforcement or investigative duties are primarily related to a violation of state or federal law unrelated to immigration enforcement. (C)  Participation in the task force by a California law enforcement agency does not violate any local law or policy to which it is otherwise subject. (4)  Making inquiries into information necessary to certify an individual who has been identified as a potential crime or trafficking victim for a T or U Visa pursuant to Section 1101(a)(15)(T) or 1101(a)(15)(U) of Title 8 of the United States Code or to comply with Section 922(d)(5) of Title 18 of the United States Code. (5)  Giving immigration authorities access to interview an individual in agency or department custody. All interview access shall comply with requirements of the TRUTH Act (Chapter 17.2 (commencing with Section 7283)). (c)  (1)  If a California law enforcement agency chooses to participate in a joint law enforcement task force, for which a California law enforcement agency has agreed to dedicate personnel or resources on an ongoing basis, it shall submit a report annually to the Department of Justice, as specified by the Attorney General. The law enforcement agency shall report the following information, if known, for each task force of which it is a member: (A)  The purpose of the task force. (B)  The federal, state, and local law enforcement agencies involved. (C)  The total number of arrests made during the reporting period. (D)  The number of people arrested for immigration enforcement purposes. (2)  All law enforcement agencies shall report annually to the Department of Justice, in a manner specified by the Attorney General, the number of transfers pursuant to paragraph (4) of subdivision (a), and the offense that allowed for the transfer, pursuant to paragraph (4) of subdivision (a). (3)  All records described in this subdivision shall be public records for purposes of the California Public Records Act (Chapter 3.5 (commencing with Section 6250)), including the exemptions provided by that act and, as permitted under that act, personal identifying information may be redacted prior to public disclosure. To the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation or a related investigation, that information shall not be disclosed. (4)  If more than one California law enforcement agency is participating in a joint task force that meets the reporting requirement pursuant to this 90 Ch. 495— 9 — Page 21 of 363 section, the joint task force shall designate a local or state agency responsible for completing the reporting requirement. (d)  The Attorney General, by March 1, 2019, and annually thereafter, shall report on the total number of arrests made by joint law enforcement task forces, and the total number of arrests made for the purpose of immigration enforcement by all task force participants, including federal law enforcement agencies. To the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation, or would endanger the successful completion of the investigation or a related investigation, that information shall not be included in the Attorney General’s report. The Attorney General shall post the reports required by this subdivision on the Attorney General’s Internet Web site. (e)  This section does not prohibit or restrict any government entity or official from sending to, or receiving from, federal immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful, of an individual, or from requesting from federal immigration authorities immigration status information, lawful or unlawful, of any individual, or maintaining or exchanging that information with any other federal, state, or local government entity, pursuant to Sections 1373 and 1644 of Title 8 of the United States Code. (f)  Nothing in this section shall prohibit a California law enforcement agency from asserting its own jurisdiction over criminal law enforcement matters. 7284.8. (a)  The Attorney General, by October 1, 2018, in consultation with the appropriate stakeholders, shall publish model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law at public schools, public libraries, health facilities operated by the state or a political subdivision of the state, courthouses, Division of Labor Standards Enforcement facilities, the Agricultural Labor Relations Board, the Division of Workers Compensation, and shelters, and ensuring that they remain safe and accessible to all California residents, regardless of immigration status. All public schools, health facilities operated by the state or a political subdivision of the state, and courthouses shall implement the model policy, or an equivalent policy. The Agricultural Labor Relations Board, the Division of Workers’ Compensation, the Division of Labor Standards Enforcement, shelters, libraries, and all other organizations and entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California, are encouraged to adopt the model policy. (b)  For any databases operated by state and local law enforcement agencies, including databases maintained for the agency by private vendors, the Attorney General shall, by October 1, 2018, in consultation with appropriate stakeholders, publish guidance, audit criteria, and training recommendations aimed at ensuring that those databases are governed in a manner that limits the availability of information therein to the fullest extent practicable and consistent with federal and state law, to anyone or any entity 90 — 10 —Ch. 495 Page 22 of 363 for the purpose of immigration enforcement. All state and local law enforcement agencies are encouraged to adopt necessary changes to database governance policies consistent with that guidance. (c)  Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2), the Department of Justice may implement, interpret, or make specific this chapter without taking any regulatory action. 7284.10. (a)  The Department of Corrections and Rehabilitation shall: (1)  In advance of any interview between the United States Immigration and Customs Enforcement (ICE) and an individual in department custody regarding civil immigration violations, provide the individual with a written consent form that explains the purpose of the interview, that the interview is voluntary, and that he or she may decline to be interviewed or may choose to be interviewed only with his or her attorney present. The written consent form shall be available in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. (2)  Upon receiving any ICE hold, notification, or transfer request, provide a copy of the request to the individual and inform him or her whether the department intends to comply with the request. (b)  The Department of Corrections and Rehabilitation shall not: (1)  Restrict access to any in-prison educational or rehabilitative programming, or credit-earning opportunity on the sole basis of citizenship or immigration status, including, but not limited to, whether the person is in removal proceedings, or immigration authorities have issued a hold request, transfer request, notification request, or civil immigration warrant against the individual. (2)  Consider citizenship and immigration status as a factor in determining a person’s custodial classification level, including, but not limited to, whether the person is in removal proceedings, or whether immigration authorities have issued a hold request, transfer request, notification request, or civil immigration warrant against the individual. 7284.12. The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. SEC. 4. Section 11369 of the Health and Safety Code is repealed. SEC. 5. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. O 90 Ch. 495— 11 — Page 23 of 363 Page 24 of 363 Page 25 of 363 Page 26 of 363 Page 27 of 363 Page 28 of 363 Page 29 of 363 Page 30 of 363 Page 31 of 363 Page 32 of 363 Page 33 of 363 Page 34 of 363 Page 35 of 363 A Judge in Chicago refuses to change ruling on sanctuary cities By Jason Meisner Chicago Tribune OCTOBER 13, 2017, 5:00 PM federal judge in Chicago on Friday refused to alter his previous ruling barring Attorney General Jeff Sessions from requiring sanctuary cities nationwide to cooperate with immigration agents in exchange for receiving public safety grant money. In granting the preliminary injunction last month, U.S. District Judge Harry Leinenweber said Mayor Rahm Emanuel’s administration could suffer “irreparable harm” in its relationship with the immigrant community if it were to comply with the U.S. Department of Justice’s new rules. The judge also said the attorney general overstepped his authority by imposing the special conditions, agreeing with the city’s argument that it was an attempt to usurp power from Congress over the country’s purse strings. U.S. Attorney General Jeff Sessions speaks about the asylum system at the Executive Office for Immigration Review in Falls Church, Va., on Oct. 12, 2017. (Jim Lo Scalzo/EPA-EFE) Support Quality Journalism Subscribe for only 99¢START NOW › Page 1 of 3Judge in Chicago refuses to change ruling on sanctuary cities -Chicago Tribune 11/1/2017http://www.chicagotribune.com/news/local/breaking/ct-met-justice-department-sanctuary-... Page 36 of 363 In a motion filed Sept. 26, Sessions asked Leinenweber to narrow the ruling to apply only to Chicago, arguing it would unfairly punish smaller cities that depend on the Edward Byrne Memorial Justice Assistance Grants. But Leinenweber wrote in his decision Friday that the “rule of law is undermined” if he allowed Sessions to continue what is likely unconstitutional conduct in other cities while the lawsuit here is pending. “An injunction more restricted in scope would leave the Attorney General free to continue enforcing the likely invalid conditions against all other Byrne JAG applicants,” wrote Leinenweber, who was appointed to the bench by President Ronald Reagan in 1985. A separate appeal of Leinenweber’s preliminary injunction is pending before the 7th U.S. Circuit Court of Appeals in Chicago. President Donald Trump’s administration wants to require cities applying for the annual grants for public safety technology to give notice when immigrants in the country illegally are about to be released from custody and allow immigration agents access to local jails. The new regulations, announced by Sessions in July, also would require local authorities to give 48 hours’ notice “where practicable” before releasing from custody people whom federal immigration agents suspect of being in the country illegally. The Byrne grants have become a high-profile battlefield between local governments and the Trump administration over the president’s immigration policies. This week, the Justice Department announced it had sent letters contending that Chicago and Cook County violated federal immigration laws last year when they were awarded public safety grants. The letters to Chicago police Superintendent Eddie Johnson and Cook County Board President Toni Preckwinkle, along with a handful of other so-called sanctuary cities around the country, do not specify why the city and county are in violation, but it gives them until Oct. 27 to prove otherwise before the Justice Department reaches “its final determination” on the matter. In a statement Friday, Emanuel claimed victory but said the “battle is not over.” “This ruling is a victory for both Chicago and cities nationwide, because no city in America should be forced to abandon its values in order to get public safety funding from the federal government,” the mayor said.Support Quality Journalism Subscribe for only 99¢START NOW › Page 2 of 3Judge in Chicago refuses to change ruling on sanctuary cities -Chicago Tribune 11/1/2017http://www.chicagotribune.com/news/local/breaking/ct-met-justice-department-sanctuary-... Page 37 of 363 jmeisner@chicagotribune.com Twitter @jmetr22b RELATED: Justice Department says Chicago violated immigration rules on earlier grant » Judge rules in city's favor on sanctuary cities, grants nationwide injunction » Copyright © 2017, Chicago Tribune This 'attr(data-c-typename)' is related to: Immigration, Jeff Sessions, U.S. Department of Justice Support Quality Journalism Subscribe for only 99¢START NOW › Page 3 of 3Judge in Chicago refuses to change ruling on sanctuary cities -Chicago Tribune 11/1/2017http://www.chicagotribune.com/news/local/breaking/ct-met-justice-department-sanctuary-... Page 38 of 363 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA THE CITY OF PHILADELPHIA, Plaintiff, v. JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as Attorney General of the United States, Defendant. Case No. 2:17-cv-03894-MMB BRIEF OF AMICI CURIAE COUNTY OF SANTA CLARA, 24 ADDITIONAL CITIES, COUNTIES AND MUNICIPAL AGENCIES, THE U.S. CONFERENCE OF MAYORS, THE NATIONAL LEAGUE OF CITIES, THE INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION, AND THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION IN SUPPORT OF THE CITY OF PHILADELPHIA’S MOTION FOR PRELIMINARY INJUNCTION Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 1 of 26 Page 39 of 363 i TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. BACKGROUND .................................................................................................................2 III. ARGUMENT .......................................................................................................................6 A. Local Officials Must Be Allowed to Adopt Law Enforcement Policies Tailored to the Needs and Unique Characteristics of Their Communities. .............6 B. Policies Restricting Local Immigration Enforcement Promote Public Safety. ......................................................................................................................9 C. The Byrne JAG Conditions Have Created Uncertainty and Operational Challenges. .............................................................................................................12 IV. CONCLUSION ..................................................................................................................17 Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 2 of 26 Page 40 of 363 ii TABLE OF AUTHORITIES CASES City of Chicago v. Sessions 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017) ............................................................... 2, 4, 5, 13 Cty. of Santa Clara v. Trump 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ........................................................................ 2, 3 Cty. of Santa Clara v. Trump 2017 WL 3086064 (N.D. Cal. July 20, 2017) ............................................................................ 3 Gonzales v. Oregon 546 U.S. 243 (2006) ................................................................................................................... 6 Medtronic, Inc. v. Lohr 518 U.S. 470 (1996) ................................................................................................................... 6 Nat’l Fed’n of Indep. Bus. v. Sebelius 567 U.S. 519 (2012) ............................................................................................................... 6, 8 Pennhurst State Sch. & Hosp. v. Halderman 451 U.S. 1 (1981) ..................................................................................................................... 16 S. Dakota v. Dole 483 U.S. 203 (1987) ................................................................................................................... 8 United States v. Lopez 514 U.S. 549 (1995) ................................................................................................................... 6 United States v. Morrison 529 U.S. 598 (2000) ................................................................................................................... 6 STATUTES Federal 8 U.S.C. section 1373 ................................................................................................. 3, 4, 5, 15, 16 42 U.S.C. § 3751(a)(1) .................................................................................................................... 7 State Cal. Gov’t Code § 7283.1(a) ......................................................................................................... 13 D.C. Code § 24-211.07(d)(1) ........................................................................................................ 13 Massachusetts General Laws Ch. 40B Section 24 .......................................................................... 1 Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 3 of 26 Page 41 of 363 iii Local Cook County Code § 46-37(b) ...................................................................................................... 14 King County Code § 2.15.010-2.15.020 ......................................................................................... 9 Municipal Code of the City and County of Denver, § 28-252 ...................................................... 14 N.Y.C. Administrative Code 9-131(h)(1) ..................................................................................... 16 OTHER AUTHORITIES Rob Arthur, Latinos In Three Cities Are Reporting Fewer Crimes Since Trump Took Office (May 18, 2017) ..................................................................................................... 10 Border Insecurity: The Rise of MS-13 and Other Transnational Criminal Organizations, Hearing before the Committee on Homeland Security and Governmental Affairs of the United States Senate (May 24, 2017) ....................................................................................... 10 Bureau of Justice Statistics, Jail Inmates in 2015 (2016) ............................................................. 12 Cato Institute, Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin, 1 & n.4, 2 (Mar. 15, 2017) ................................................................. 9 Darcy Costello, “New LMPD policy: No working with immigration officials to enforce federal laws,” The Courier-Journal (Sept. 22, 2017) .................................................. 11 County of Santa Clara, Bd. of Supervisors Policy No. 3.54 ..................................................... 9, 14 Department of Justice Programs, Grants 101, Overview of OJP Grants and Funding, Types of Funding .................................................................................................. 7 Executive Order 13768 ............................................................................................................... 2, 3 H.R. Rep. No. 109-233 ................................................................................................................... 8 Houston Police Dep’t, Immigration Policy Questions and Answers .............................................. 9 Kate Howard, “Louisville Police Don’t Enforce Immigration – But Help the Feds Do It,” Ky. Ctr. for Investigative Reporting (Sept. 17, 2017) ............................................................... 11 Immigrant Legal Resource Center, Detainer Policies ..................................................................... 9 International Association of Chiefs of Police, Enforcing Immigration Law: The Role of State, Tribal and Local Law Enforcement .............................................................. 7 Jasmine C. Lee, Ruby Omri, and Julia Preston, "What Are Sanctuary Citites," New York Times (Feb. 6, 2017) .................................................................................................. 2 Brooke A. Lewis, “HPD chief announces decrease in Hispanics reporting rape and violent crimes compared to last year,” Houston Chronicle (Apr. 6, 2017) ....................... 10 Major Cities Chiefs Ass'n, Immigration Policy (2013) .................................................................. 6 Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 4 of 26 Page 42 of 363 iv Katie Mettler, “‘This is really unprecedented’: ICE detains woman seeking domestic abuse protection at Texas courthouse,” Wash. Post (Feb. 16, 2017) ....................................... 14 James Queally, “ICE agents make arrests at courthouses, sparking backlash from attorneys and state supreme court,” Los Angeles Times (Mar. 16, 2017)................................. 14 James Queally, “Latinos are reporting fewer sexual assaults amid a climate of fear in immigrant communities, LAPD says,” Los Angeles Times (Mar. 21, 2017) ....................... 10 Nik Theodore, Dep’t of Urban Planning and Policy, University of Chicago, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, 5-6 (2013) ........................................................................................................... 10 Tucson Policy Dep't Gen. Orders, Gen. Order 2300 ...................................................................... 9 Transcript of Donald Trump's Immigration Speech The New York Times (Sept. 1, 2016) .......................................................................................... 2 U.S. Dep't of Justice, Office of Justice Programs, Certifications of Compliance with 8 U.S.C. § 1373 ................................................................................................................... 4 U.S. Dep’t of Justice, Office of Public Affairs, Attorney General Sessions Delivers Remarks on Sanctuary Policies (Aug. 16, 2017) ....................................................... 15 U.S. Dep't of Justice, Office of Public Affairs, COPS Office: Immigration Cooperation Certification Process Background ............................................................................................. 4 U.S. Dep't of Justice, Office of Public Affairs, Department of Justice Announces Priority Consideration Criteria for COPS Office Grants (Sept. 7, 2017) ............................................... 4 U.S. Dep't of Justice, Office of Public Affairs, Justice Department Announces that Commitment to Reducing Violent Crime Stemming from Illegal Immigration will be Required for Participation in Public Safety Partnership Program (Aug. 3, 2017) ................... 4 U.S. Dep’t of Justice, Office of Public Affairs, Justice Department Provides Last Chance for Cities to Show 1373 Compliance ................................................................... 15 Chuck Wexler, “Police chiefs across the country support sanctuary cities because they keep crime down,” Los Angeles Times (Mar. 6, 2017) ....................................................... 9 The White House, Office of the Press Secretary, Press Briefing by Press Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017) ........................................................................................................ 3 Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on Crime and the Economy, ¶ 12 (2017) .............................................................................. 9, 11 Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 5 of 26 Page 43 of 363 1 I. INTRODUCTION Amici are 24 cities, counties, and municipal agencies,1 and four major associations of local governments and their officials: The United States Conference of Mayors, the National League of Cities, the International Municipal Lawyers Association, and the International City/County Management Association.2 Local governments bear responsibility for protecting the safety and welfare of our communities. Our law enforcement officials patrol our streets, operate our jails, investigate and prosecute crimes, and secure justice for victims. To fulfill these responsibilities, amici cities and counties must build and maintain the trust of our residents, regardless of their immigration status, and we must be able to adopt policies which foster that trust and meet our communities’ unique needs. Since January, President Trump and his Administration have targeted local jurisdictions, like the amici cities and counties, that have determined the needs of their communities are best met, and public safety is best secured, by limiting local involvement with the enforcement of federal immigration law. In one of his first acts upon taking office, President Trump issued an Executive Order (“Order”) directing his Administration to deny federal funds to so-called 1 The Metropolitan Area Planning Council is the Regional Planning Agency serving the people who live and work in the 101 cities and towns of Metropolitan Boston. See Massachusetts General Laws Ch. 40B Section 24. The agency provides extensive technical assistance to cities and towns in the Greater Boston region, and supports the ability of cities and towns to adopt and implement best practices for maintaining a productive relationship with all residents of their communities, regardless of their immigration status. 2 The United States Conference of Mayors is the official non-partisan organization of cities with populations of 30,000 or more. There are 1,408 such cities in the country today. Each city is represented in the Conference by its chief elected official, the mayor. The National League of Cities (“NLC”) is dedicated to helping city leaders build better communities. NLC is a resource and advocate for 19,000 cities, towns and villages, representing more than 218 million Americans. The International Municipal Lawyers Association (“IMLA”) is owned by its more than 2,500 members and serves as an international clearinghouse for legal information and cooperation on municipal legal matters. IMLA’s mission is to advance the responsible development of municipal law through education and advocacy by providing the collective viewpoint of local governments around the country on legal issues before courts nationwide. The International City/County Management Association (“ICMA”) is a non-profit professional and educational organization with more than 11,000 members, the appointed chief executives and professionals who serve local governments throughout the world. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 6 of 26 Page 44 of 363 2 “sanctuary” jurisdictions. Executive Order 13768, §§ 2(c), 9(a). Three months later, Judge William H. Orrick of the United States District Court for the Northern District of California granted a nationwide preliminary injunction barring enforcement of Section 9(a) of the Order. Cty. of Santa Clara v. Trump, No. 17-CV-00574, City & Cty. of San Francisco v. Trump, No. 17- CV-00485, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) (hereinafter Santa Clara). Despite that injunction, the Department of Justice (“DOJ”) is attempting yet again to deny federal funds to jurisdictions that choose to limit their participation in enforcing federal immigration law. The DOJ’s new conditions on the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program violate federal law, usurp local control over public safety policy, erode the community trust on which local law enforcement depends, and create uncertainty for local governments like amici. A district court in Chicago has already recognized this and preliminarily enjoined the enforcement of two of these conditions on a nationwide basis. City of Chicago v. Sessions, No. 17-CV-5720, 2017 WL 4081821, at *14 (N.D. Ill. Sept. 15, 2017). But the federal government continues to dispute the nationwide scope of this injunction, and a preliminary injunction is required from this Court to protect Philadelphia and prevent irreparable harm to its law enforcement efforts and its local residents. II. BACKGROUND Hundreds of local jurisdictions nationwide have concluded they can best promote the safety and well-being of their communities by limiting their involvement in immigration enforcement. See, e.g., Jasmine C. Lee, Rudy Omri, and Julia Preston, “What Are Sanctuary Cities,” New York Times (Feb. 6, 2017), https://www.nytimes.com/interactive/2016/09/02/us/ sanctuary-cities.html?mcubz=1. Although these jurisdictions are just as safe as – if not safer than, see infra at 9-11 – those that devote local resources to enforcing federal immigration law, President Trump has blamed them for “needless deaths” and promised to “end . . . [s]anctuary” jurisdictions by cutting off their federal funding. Transcript of Donald Trump’s Immigration Speech, The New York Times (Sept. 1, 2016), https://www.nytimes.com/2016/09/02/us/ Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 7 of 26 Page 45 of 363 3 politics/transcript-trump-immigration-speech.html. On January 25, 2017, President Trump issued Executive Order 13768, which directed the Attorney General and the Secretary of Homeland Security to ensure that “sanctuary jurisdictions” do not receive any “[f]ederal funds.” Executive Order 13768, §§ 2(c), 9(a). The White House made clear that the Order aimed to “end[] sanctuary cities” by stripping them of all federal funding. See, e.g., Press Release, The White House, Office of the Press Secretary, Press Briefing by Press Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017), https://www.whitehouse.gov/the-press-office/2017/02/01/press-briefing-press-secretary-sean- spicer-212017-6. Shortly thereafter, the County of Santa Clara and the City and County of San Francisco filed related lawsuits challenging the Order and moved for a preliminary injunction barring its enforcement. At oral argument on the motions, DOJ attempted to walk back the Order’s sweeping language by arguing the Order was merely an “exercise of the President’s ‘bully pulpit’” to exert political pressure on local government entities, and only applied narrowly to three specific federal grants (including Byrne JAG). Santa Clara, 2017 WL 1459081, at *1. The district court rejected this interpretation, finding it irreconcilable with the plain language of the Order, and issued a preliminary injunction in April prohibiting enforcement of Section 9(a)’s broad funding ban.3 Id. at *9. The Executive Order remains preliminary enjoined, and Santa Clara and San Francisco have moved for a permanent injunction. Meanwhile, the Attorney General has shifted to a grant-by-grant approach. In April 2017, as it became increasingly likely that the Executive Order would be enjoined, DOJ took action to enforce a condition on Byrne JAG funding initially imposed in 2016. See Compl. ¶¶ 69-74 (Dkt. No.1). This condition (the “certification condition”) requires recipients of Byrne JAG program funds to certify compliance with 8 U.S.C. section 1373, which prohibits 3 DOJ relied on an Attorney General memorandum purporting to reinterpret the Executive Order to seek reconsideration of the preliminary injunction, but the district court rejected that attempt. See Cty. of Santa Clara v. Trump, No. 17-CV-00574, City & Cty. of San Francisco v. Trump, No. 17-CV-00485, 2017 WL 3086064 (N.D. Cal. July 20, 2017). Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 8 of 26 Page 46 of 363 4 restrictions on the sharing of citizenship and immigration status information. On April 21, 2017, the DOJ sent letters to nine jurisdictions, including Philadelphia, suggesting they did not comply with section 1373 and requiring them to submit an “official legal opinion” and supporting documentation to demonstrate their compliance by June 30, 2017. Compl. ¶ 78. Then, on July 25, 2017, the Attorney General officially announced three conditions applicable to the Byrne JAG program, including the existing certification condition and two new conditions that require recipients to (1) “permit personnel of [DHS] to access any detention facility in order to meet with an alien and inquire as to his or her right to be or remain in the United States” (“access condition”), and (2) “provide at least 48 hours advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien” (“notice condition”). Compl. ¶ 5 & Exs. 1, 15. The DOJ has indicated that these conditions may be applied to other grants, see U.S. Dep’t of Justice, Office of Justice Programs, Certifications of Compliance with 8 U.S.C. § 1373, https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm, and has made local immigration enforcement a selection criterion for other federal grant programs.4 Several jurisdictions filed suit to challenge the Byrne JAG conditions.5 After the City of 4 On August 3, 2017, the DOJ announced that to be selected for the Public Safety Partnership program, local jurisdictions must “show a commitment to reducing crime stemming from illegal immigration.” U.S. Dep’t of Justice, Office of Public Affairs, Justice Department Announces that Commitment to Reducing Violent Crime Stemming from Illegal Immigration will be Required for Participation in Public Safety Partnership Program (Aug. 3, 2017), https://www.justice.gov/opa/pr/justice-department-announces-commitment-reducing-violent- crime-stemming-illegal-immigration. Applicants are now required to report whether they have access and notice policies that mirror the access and notice conditions of the JAG grants and whether they honor ICE detainers. Id. On September 7, 2017, the DOJ announced that applicants for competitive Office of Community Oriented Policing Services (COPS Office) grants will receive priority consideration if they certify that they provide DHS access to their detention facilities and advance notice to DHS of “an illegal alien’s release date and time.” U.S. Dep’t of Justice, Office of Public Affairs, COPS Office: Immigration Cooperation Certification Process Background, https://www.justice.gov/opa/press-release/‌‌‌file/995376/download (last accessed Oct. 12, 2017); see also U.S. Dep’t of Justice, Office of Public Affairs, Department of Justice Announces Priority Consideration Criteria for COPS Office Grants (Sept. 7, 2017), https://www.justice.gov/‌opa/pr/department-justice-announces-priority-consideration-criteria- cops-office-grants. 5 See City of Chicago v. Sessions, No. 17-CV-05720 (N.D. Ill., filed Aug. 7, 2017); City & Cnty. of San Francisco v. Sessions, No. 17-CV-04642-WHO (N.D.Cal., filed Aug. 11, 2017); State of Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 9 of 26 Page 47 of 363 5 Chicago moved for a preliminary injunction in its case, the DOJ again changed course and represented that the conditions announced on July 25 – and subsequently included in the Fiscal Year 2017 Byrne JAG solicitations – were not “actual” conditions, but “only advised prospective applicants regarding the general tenor of the conditions.” Def.’s Opp. To Pl.’s Mot. to Expedite Briefing Schedule, at 3 n.2, Chicago v. Sessions, No. 17-CV-05720 (N.D. Ill. Aug. 14, 2017), ECF No. 28 (emphasis added). DOJ then submitted a pair of award letters, dated August 23, 2017, that set forth what are purportedly the “actual” conditions. In these letters, the DOJ modified the condition requiring 48 hours’ notice to DHS before an inmate is released from local custody to require notice “as early as practicable.” Declaration of Alan R. Hanson (“Hanson Decl.”), Exs. A & B, ¶¶55-56, Chicago v. Sessions, No. 17-CV-5720 (N.D. Ill. Aug. 14, 2017), ECF No. 32. And DOJ modified the access condition to require a local policy or practice designed to ensure that federal agents “in fact” are given access to correctional facilities for the purpose of meeting with individuals believed to be aliens and inquiring into their right to remain in the country. Id. On September 15, 2017, Judge Harry D. Leinenweber, of the Northern District of Illinois, issued a nationwide preliminary injunction prohibiting enforcement of the notice and access conditions, but leaving in place the certification condition.6 Chicago, 2017 WL 4081821, at *14. Chicago has moved for reconsideration of the portion of the order allowing enforcement of the certification condition, and the DOJ has appealed.7 California v. Sessions No. 17-CV-4701-WHO (filed Aug. 14, 2017 N.D. Cal.); City of Philadelphia v. Sessions, No. 17-CV-03894-MMB (E.D.Pa., filed Aug. 30, 2017); City of Los Angeles v. Sessions, No. 17-CV-07215-R-JC (C.D.Cal., filed Sept. 29, 2017). 6 The DOJ moved to stay the nationwide application of the preliminary injunction, but the district court denied its motion. See Mem. Op. & Order, Chicago v. Sessions, No. 17-CV-5720 (N.D. Ill. Oct. 13, 2017), ECF No. 98. The DOJ has also moved to stay the nationwide application of the preliminary injunction in the Seventh Circuit. 7 Chicago moved for reconsideration based on a letter from DOJ, discussed infra at pages 15-16, that found Chicago to be in violation of 1373 and contradicted representations DOJ made to the district court. Chicago has moved to hold DOJ’s appeal in abeyance pending resolution of this motion. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 10 of 26 Page 48 of 363 6 III. ARGUMENT A. Local Officials Must Be Allowed to Adopt Law Enforcement Policies Tailored to the Needs and Unique Characteristics of Their Communities. Our nation’s constitutional structure is premised on the notion that states and localities, as the governments closest to the people, bear responsibility for protecting the health and safety of their residents. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (“health and safety . . . are primarily, and historically, matters of local concern”) (internal quotation marks and alterations omitted). Within the “structure and limitations of federalism,” state and local governments possess “great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (internal quotation marks omitted). This local control ensures that matters which “concern the lives, liberties, and properties of the people” are determined “by governments more local and more accountable than a distant federal bureaucracy.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012). The duty to protect local residents from crime lies at the heart of the police power vested in state and local jurisdictions. See United States v. Morrison, 529 U.S. 598, 618 (2000) (there is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims”). In carrying out this duty, cities and counties possess – and must be allowed to exercise – broad discretion to develop and implement law enforcement and public safety policies tailored to the needs of their communities. See United States v. Lopez, 514 U.S. 549, 561 (1995). This is a matter not only of constitutional law, but of sound law enforcement policy. Police chiefs and sheriffs nationwide have stated that “decisions related to how local law enforcement agencies allocate their resources, direct their workforce and define the duties of their employees to best serve and protect their communities must be left in the control of local governments.” Major Cities Chiefs Ass’n, Immigration Policy (2013), Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 11 of 26 Page 49 of 363 7 https://www.majorcitieschiefs.com/pdf/news/2013_immigration_policy.pdf. Local control is no less critical when policy decisions concern enforcement of federal immigration law. See id. (“The decision to have local police officers perform the function and duties of immigration agents should be left to the local government[.]”). Amici share the judgment that local participation in federal immigration enforcement can be detrimental to community safety. But one need not agree with Philadelphia’s specific policy decisions – or those of the city and county amici – to agree these decisions should rest with the local entities tasked with keeping our communities safe. The International Association of Chiefs of Police (“IACP”) has taken no position on whether local law enforcement agencies should engage in immigration enforcement. IACP, Enforcing Immigration Law: The Role of State, Tribal and Local Law Enforcement, 1, http://www.theiacp.org/portals/0/pdfs/publications/ immigrationenforcementconf.pdf (hereinafter Enforcing Immigration Law). But the IACP is not neutral on who should decide whether local police do so. In its view, “local law enforcement’s participation in immigration enforcement is an inherently local decision that must be made by a police chief, working with their elected officials, community leaders and citizens.” Id. at 1 (emphasis added). Attempts to coerce participation by withholding federal funds are “unacceptable.” Id. at 5. In creating the Byrne JAG program, Congress recognized the need for local control over law enforcement policy and structured the program to maximize local discretion. As Philadelphia has explained, the Byrne JAG program is a formula grant,8 available for use in eight broad areas, including law enforcement; prosecution and courts; prevention and education; corrections and community corrections; drug treatment and enforcement; planning, evaluation, and technology improvement; crime victim and witness programs; and mental health. See 42 U.S.C. § 3751(a)(1). Congress designed the program in this manner to “give State and local governments 8 A formula grant is a non-competitive grant in which funds are allocated based upon a statutory formula, without a competitive process. Department of Justice Programs, Grants 101, Overview of OJP Grants and Funding, Types of Funding, https://ojp.gov/grants101/typesoffunding.htm. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 12 of 26 Page 50 of 363 8 more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). Empowering states and localities to make their own policy choices is thus a central purpose of the program. Local jurisdictions, including many of the amici, put these funds to diverse uses, reflecting both the varied law enforcement needs of different communities and Congress’s intent to preserve local discretion and flexibility in Byrne JAG-funded law enforcement programs. For example:  Iowa City, Iowa (population 74,398) uses Byrne JAG funds to promote traffic safety, to establish a search and rescue program aimed at individuals at risk for wandering, to partially fund a drug task force, and to purchase equipment.  Portland, Oregon (population 639,863) has used Byrne JAG funds to support its New Options for Women (NOW) program, which provides services to women who have experienced sexual exploitation while working in the commercial sex industry.  Sacramento, California (population 493,025) uses Byrne JAG funds to support the ongoing maintenance and operation of its Police Department’s helicopter program.  San Francisco, California (population 870,887) uses Byrne JAG funds to operate a Youth Adult Court aimed at reducing recidivism for youth ages 18-25 by providing case management and other services that account for young adults’ unique developmental needs. If the Byrne JAG conditions are allowed to stand, local governments will be forced to choose between losing critical funding for these diverse programs or giving up control over inherently local law enforcement policies. Such a result would not only undermine the ability of local entities to enact policies reflecting the needs and unique characteristics of their communities – thus subverting a central purpose of the funding – but also allow the executive branch to wield powers vested exclusively in Congress. Under the Spending Clause, only Congress – whose members are elected by and accountable to local communities – can place substantive conditions on federal funds. S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (“Incident to [its Article I spending] power, Congress may attach conditions on the receipt of federal funds[.]”) (emphasis added). And any conditions must be germane to the purpose of the funding. Sebelius, 567 U.S. at 632. In the case of Byrne JAG funding, Congress chose to preserve local discretion, and DOJ has no authority to upend that decision. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 13 of 26 Page 51 of 363 9 B. Policies Restricting Local Immigration Enforcement Promote Public Safety. In exercising its discretion over local law enforcement policy, Philadelphia has made the considered judgment that devoting local resources to immigration enforcement would be detrimental to community safety. Compl., ¶¶ 2-3, 27-30. Philadelphia is not alone in this judgment. More than 600 counties and numerous cities – including many of the amici – have opted to limit their engagement in federal immigration enforcement efforts. Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on Crime and the Economy, ¶ 12 (2017) (hereinafter “Effects of Sanctuary Policies”) (identifying 608 counties coded by Immigration and Customs Enforcement (“ICE”) as limiting involvement with immigration enforcement), https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/ the-effects-of-sanctuary-policies-on-crime-and-the-economy/; Immigrant Legal Resource Center, Detainer Policies, https://www.ilrc.org/detainer-policies (listing city and county policies to decline detainer requests). The policies of these counties and cities are themselves diverse, reflecting the varied needs and judgments of each jurisdiction.9 Policies that restrict local entanglement with ICE reflect the judgment of local governments and law enforcement agencies that community trust in local law enforcement is vital to the work of public safety. Local law enforcement agencies rely upon all community members – regardless of immigration status – to report crimes, serve as witnesses, and assist in investigations and prosecutions. See, e.g., Chuck Wexler, “Police chiefs across the country support sanctuary cities because they keep crime down,” Los Angeles Times (Mar. 6, 2017), http://www.latimes.com/opinion/op-ed/la-oe-wexler-sanctuary-cities-immigration-crime- 20170306-story.html. Immigrants – again, regardless of immigration status – are less likely to commit crimes than native U.S. citizens. See, e.g., Cato Institute, Criminal Immigrants: Their 9 See, e.g., County of Santa Clara, Bd. of Supervisors Policy No. 3.54, https://www.sccgov.org/ ‌sites/bos/Legislation/BOS-Policy-Manual/Documents/BOSPolicyCHAP3.pdf; Houston Police Dep’t, Immigration Policy Questions and Answers, http://www.houstontx.gov/‌‌‌‌‌police/pdfs/ immigration_facts.pdf; King County Code § 2.15.010-2.15.020, http://aqua.kingcounty.gov/ council/clerk/code/05_Title_2.pdf ; Tucson Police Dep’t Gen. Orders, Gen. Order 2300, https://www.tucsonaz.gov/files/police/general-orders/‌‌2300IMMIGRATION.pdf. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 14 of 26 Page 52 of 363 10 Numbers, Demographics, and Countries of Origin, 1 & n.4, 2 (Mar. 15, 2017), https://object. cato.org/sites/cato.org/files/pubs/pdf/immigration_brief-1.pdf. But “[t]he moment [immigrant] victims and witnesses begin to fear that their local police will deport them, cooperation with their police then ceases.” Border Insecurity: The Rise of MS-13 and Other Transnational Criminal Organizations, Hearing before the Committee on Homeland Security and Governmental Affairs of the United States Senate (May 24, 2017) (statement of J. Thomas Manger, Chief of Police, Montgomery County, Maryland). Indeed, in the experience of amici, even the perception that local law enforcement is assisting in immigration enforcement can erode trust, disrupt lines of communication, and make law enforcement’s job much more difficult. Recent data bear this out. Since President Trump took office and promised to ramp up deportations, Latinos have reported fewer crimes relative to reports by non-Latinos. Rob Arthur, Latinos In Three Cities Are Reporting Fewer Crimes Since Trump Took Office (May 18, 2017) (analyzing data from Dallas, Denver, and Philadelphia), https://fivethirtyeight.com/features/ latinos-report-fewer-crimes-in-three-cities-amid-fears-of-deportation/. Disturbingly, some jurisdictions have identified declines specifically in reports of sexual assault and domestic violence. Id. 10 Local police chiefs have attributed these declines to community members’ increased fear that interactions with law enforcement could lead to their deportation, or the deportation of a family member. Id.; see also supra at 10 n.10. Indeed, 50% of foreign-born individuals and 67% of undocumented individuals surveyed reported being less likely to offer information about crimes to law enforcement for fear that officers will inquire about their or others’ immigration status. Nik Theodore, Dep’t of Urban Planning and Policy, University of Chicago, Insecure Communities: Latino Perceptions of Police Involvement in Immigration 10 See also Brooke A. Lewis, “HPD chief announces decrease in Hispanics reporting rape and violent crimes compared to last year,” Houston Chronicle (Apr. 6, 2017), http://www.chron.com/news/houston-texas/houston/article/HPD-chief-announces-decrease-in- Hispanics-11053829.php; James Queally, “Latinos are reporting fewer sexual assaults amid a climate of fear in immigrant communities, LAPD says,” Los Angeles Times (Mar. 21, 2017), http://www.latimes.com/local/lanow/la-me-ln-immigrant-crime-reporting-drops-20170321- story.html. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 15 of 26 Page 53 of 363 11 Enforcement, 5-6 (2013), http://www.policylink.org/sites/default/files/INSECURE_ COMMUNITIES_REPORT_FINAL.PDF. Local policies that limit entanglement with ICE help mitigate these fears, facilitate engagement with immigrant communities, and ultimately improve public safety by ensuring that those who commit crimes are brought to justice. Contrary to President Trump and Attorney General Sessions’ unsupported rhetoric, research has shown that policies limiting cooperation with federal immigration authorities are associated with lower crime rates – on average, 35.5 fewer crimes per 10,000 people. Effects of Sanctuary Policies, ¶ 16. The association is even stronger in large metropolitan areas: counties with large, urban centers that limit local involvement with ICE experience 65.4 fewer crimes per 10,000 people than similar counties that do not limit such involvement. Id., ¶ 15. Indeed, Philadelphia has experienced these effects first-hand. See Compl. ¶¶ 28, 37 (describing decrease in crime in Philadelphia following adoption of policies to limit cooperation with federal immigration enforcement efforts). Even localities that previously engaged in extensive cooperation with ICE enforcement efforts, such as the City of Louisville, Kentucky, have since determined that having local police assist with immigration enforcement undermines community trust to the detriment of local public safety, and have discontinued the practice except in limited circumstances. See Kate Howard, “Louisville Police Don’t Enforce Immigration – But Help the Feds Do It,” Ky. Ctr. for Investigative Reporting (Sept. 17, 2017), http://kycir.org/2017/09/07/louisville-police-dont- enforce-immigration-but-they-help-ice-do-it/?_ga=2.181999650.449997577.1505784164- 179920009.1505784164; Darcy Costello, “New LMPD policy: No working with immigration officials to enforce federal laws,” The Courier-Journal (Sept. 22, 2017). If the new Byrne JAG conditions are not enjoined, jurisdictions like Philadelphia and some of the amici will be compelled to make choices that undermine public safety: either abandon non-entanglement policies that increase community trust and lower crime rates, or lose funding for critical law enforcement programs. This is not a choice that cities and counties should have to make; it is not a choice that can be imposed consistent with the purpose of the Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 16 of 26 Page 54 of 363 12 Byrne JAG program; and, as Philadelphia has demonstrated, it is not a choice that DOJ has the legal authority to require. C. The Byrne JAG Conditions Have Created Uncertainty and Operational Challenges. Since President Trump’s Executive Order punishing sanctuary jurisdictions was issued, the DOJ’s position on immigration-related funding conditions has become a constantly moving target. See supra at 3-5. The new Byrne JAG conditions are surrounded by an untenable level of uncertainty and pose operational challenges for jurisdictions that rely on this funding. Notice Condition. As announced by the Attorney General and described in the FY 2017 solicitations, the new notice condition required Byrne JAG recipients to “provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody.” Compl., Ex. 1 (emphasis added). This created significant uncertainty and operational concerns for local jurisdictions, including some amici, that operate detention facilities whose populations are primarily – or exclusively – unsentenced individuals held in custody pending resolution of criminal charges or transfer to another facility. See Bureau of Justice Statistics, Jail Inmates in 2015, at 5 tbl. 4 (2016), https://www.bjs.gov/content/pub/pdf/ ji15.pdf (63% of jail inmates nationwide are unsentenced). Unsentenced inmates typically do not have a “scheduled release date and time” that can be determined 48 hours in advance, and many are in custody for less than 48 hours before they post bail or are ordered released. For this reason, the Attorney General’s announcement and the FY 2017 solicitation created confusion and concern that the notice condition may have been intended to require local jurisdictions to continue to detain unsentenced inmates after they would otherwise be released in order to provide sufficient notice to DHS.11 DOJ now represents that this condition requires notice only “as early as practicable,” and does not require any locality to hold an inmate beyond the time he or she would otherwise be released. Def.’s Opp. to Pl.’s Mot. 11 In its response to Philadelphia’s motion for preliminary injunction, the DOJ represents that the access condition applies to any immigrant detained in local custody for whom ICE requests notification, regardless of whether the immigrant is sentenced or unsentenced or has a scheduled release date. See Mem. in Opp. to Pl.’s Mot. for Prelim. Inj. (“Opp.”) at 31-32, ECF No. 28. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 17 of 26 Page 55 of 363 13 for Preliminary Injunction, 20, Chicago, No. 17-CV-5720 (N.D. Ill., Aug. 24, 2017), ECF No. 32; Hanson Decl., Exs. A & B, ¶¶55-56, Chicago, No. 17-CV-5720 (N.D. Ill., Aug. 24, 2017), ECF No. 32. Even assuming DOJ adheres to this latest articulation of the condition, it nonetheless presents operational concerns: for agencies that detain arrestees and unsentenced individuals, there are likely to be many instances in which giving any advance notice is impracticable. It also conflicts with the local laws or policies of some amici, which have limited their responses to ICE notification requests for the reasons discussed in Section II, supra. Moreover, given DOJ’s inconsistent position, amici remain concerned about how this condition will be enforced in practice. Access Condition. The award letters submitted by DOJ with its opposition to Chicago’s preliminary injunction motion require Byrne JAG recipients to have a policy or practice in place to ensure that federal agents “in fact are given access” to a local “correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.” Hanson Decl., Exs. A & B, ¶ 56(1)(A), Chicago, No. 17-CV-5720 (N.D. Ill., Aug. 24, 2017), ECF No. 32. The award letter does not explain what “access” “in fact” means, leaving jurisdictions to guess at what they must do to comply and, in some cases, whether compliance is consistent with state law. In California, state law requires local agencies to provide a consent form prior to any interview with ICE that explains the purpose of the interview, that the interview is voluntary, and that the inmate may decline to be interviewed or choose to be interviewed only with his or her attorney present. Cal. Gov’t Code § 7283.1(a). Other jurisdictions require an inmate’s written consent prior to allowing any interview with ICE, see Compl. ¶¶ 50-51 (describing Philadelphia policy), or provide that inmates must be permitted to have an attorney present during ICE interviews, see D.C. Code § 24-211.07(d)(1). The DOJ has represented in this litigation that the access condition requires Byrne JAG recipients to permit ICE interviews even if the inmate does not consent to the interview or declines to answer questions. (Opp. at 32.) If DOJ in fact maintains that position, some jurisdictions may be forced Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 18 of 26 Page 56 of 363 14 to forego Byrne JAG funds to comply with state or local laws. For other jurisdictions, ambiguity surrounding how DOJ will ultimately enforce the condition continues to cause confusion and concern. Whether to allow ICE to operate inside city and county detention facilities is an inherently local decision that should be left to local governments and local law enforcement officials. See Enforcing Immigration Law at 1. Local agencies are responsible for maintaining order and security within jails and other detention facilities, and they must retain the discretion to decide how that responsibility is best fulfilled. Some jurisdictions have made the judgment that permitting ICE to operate in local detention facilities interferes with correctional operations – for example, by increasing fear among inmates and decreasing their trust of correctional staff – and is not in the best interests of staff, inmates, or the broader community. See, e.g., Cook County Code § 46-37(b); County of Santa Clara, Bd. of Supervisors Policy No. 3.54, https://www.sccgov.org/sites/bos/Legislation/BOS-Policy-Manual/Documents/ BOSPolicyCHAP3.pdf; Revised Municipal Code of the City and County of Denver, § 28-252. Moreover, local officials have already expressed concern that ICE’s practice of arresting immigrants at courthouses – including crime victims – deters immigrants both from pursuing justice for crimes committed against them, and from appearing in court to answer any charges they may be facing, thereby endangering local prosecutions. See, e.g., Katie Mettler, “‘This is really unprecedented’: ICE detains woman seeking domestic abuse protection at Texas courthouse,” Wash. Post (Feb. 16, 2017), https://www.washingtonpost.com/news/morning-mix/ wp/2017/02/16/this-is-really-unprecedented-ice-detains-woman-seeking-domestic-abuse- protection-at-texas-courthouse/?utm_term=.b1c3c0902b1b; James Queally, “ICE agents make arrests at courthouses, sparking backlash from attorneys and state supreme court,” Los Angeles Times (Mar. 16, 2017), http://www.latimes.com/local/lanow/la-me-ln-ice-courthouse-arrests- 20170315-story.html. Immigrant inmates who see ICE operating in local jails or detention facilities may assume that ICE is permitted in other government buildings, such as courthouses, and may be more likely to abscond, denying victims the opportunity for justice. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 19 of 26 Page 57 of 363 15 Certification Condition. Finally, the Trump Administration has created significant uncertainty and concern over how it intends to enforce requirements that federal grant recipients comply with 8 U.S.C. § 1373. On its face, section 1373 addresses only state and local restrictions on the sharing of information on citizenship or immigration status with ICE or other governmental entities; the statute does not mandate that state and local governments collect this information, nor does it impose any additional requirements. See 8 U.S.C. § 1373. Nonetheless, the Administration has repeatedly suggested that a broad range of local policies – including policies limiting compliance with ICE detainer requests – violate section 1373. See U.S. Dep’t of Justice, Office of Public Affairs, Attorney General Sessions Delivers Remarks on Sanctuary Policies (Aug. 16, 2017), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers- remarks-sanctuary-policies (suggesting that Miami-Dade County is “now in full compliance” following its decision to begin honoring detainer requests); Compl., Ex. 1 (section 1373 “generally bars restrictions on communications” between local agencies and DHS). On October 12, 2017, the DOJ completed a preliminary review of the legal opinions and supporting documentation it demanded from nine jurisdictions, and sent letters to five jurisdictions – including Philadelphia and amici Chicago, Cook County, and New York City – stating that they “have preliminarily been found to have laws, policies, or practices that may violate 8 U.S.C. 1373.” See U.S. Dep’t of Justice, Office of Public Affairs, Justice Department Provides Last Chance for Cities to Show 1373 Compliance, https://www.justice.gov/opa/pr/ justice-department-provides-last-chance-cities-show-1373-compliance.12 These letters only add 12 See also Letter from Alan Hanson, Acting Assistant Attorney General, U.S. Dep’t of Justice to the Honorable Jim Kenney, Mayor of Philadelphia (Oct. 11, 2017), https://www.justice.gov/opa/press-release/file/1003046/download (“Philadelphia Letter”); Letter from Alan Hanson, Acting Assistant Attorney General, U.S. Dep’t of Justice to Eddie T. Johnson, Chicago Superintendent of Police (Oct. 11, 2017), https://www.justice.gov/opa/press- release/file/1003016/download (“Chicago Letter”); Letter from Alan Hanson, Acting Assistant Attorney General, U.S. Dep’t of Justice to Toni Preckwinkle, President, Cook County Board of Commissioners (Oct. 11, 2017), https://www.justice.gov/opa/press- release/file/1003026/download (“Cook County Letter”); Letter from Alan Hanson, Acting Assistant Attorney General, U.S. Dep’t of Justice to the Honorable Mitchel Landieu, City of New Orleans Criminal Justice Coordination (Oct. 11, 2017), https://www.justice.gov/opa/press- release/file/1003036/download (“New Orleans Letter”); Letter from Alan Hanson, Acting Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 20 of 26 Page 58 of 363 16 to the uncertainty surrounding the certification condition and confirm that DOJ intends to enforce an insupportably broad interpretation of the statute. For example, several of the letters indicate that policies limiting sharing of information about custody status or release dates violate section 1373.13 See Philadelphia Letter at 1; Chicago Letter at 1; Cook County Letter at 1; New York Letter at 2-3. But DOJ provides no explanation of how such policies “prohibit, or in any way restrict” what section 1373 addresses: the sharing of information about immigration status.14 Some of the letters also state, without further explanation, that DOJ “is not relying on” policies limiting compliance with ICE detainer requests in its “preliminary assessment[s].” Philadelphia Letter at 1 n.1; New York Letter at 2 n.1. This cryptic language could suggest that DOJ is leaving open the possibility that such policies may violate section 1373 – leaving jurisdictions to wonder whether DOJ will “rely[] on” such policies in the future and, if so, what position it will take. DOJ’s failure to provide a clear and lawful interpretation of section 1373 has created uncertainty and forces jurisdictions to guess at how DOJ will view their policies – or what policy changes DOJ would view as sufficient – when it begins enforcing this condition. Local jurisdictions may not lawfully be placed in this position. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (even where Congress imposes conditions on receipt of Assistant Attorney General, U.S. Dep’t of Justice to Elizabeth Glazer, Director, New York City Mayor’s Office of Criminal Justice (Oct. 11, 2017), https://www.justice.gov/opa/press- release/file/1003041/download (“New York Letter”). 13 New York City law permits Department of Correction personnel to provide federal immigration authorities with information related to a person’s citizenship or immigration status, but prohibits the sharing of information about incarceration status and release dates unless an enumerated exception applies. N.Y.C. Administrative Code 9-131(h)(1). The New York Letter states that to comply with section 1373, New York would need to certify that it interprets this ordinance to “not restrict New York officers from sharing information regarding immigration status with federal immigration officers, including information regarding an alien’s incarceration status and release date and time.” New York Letter at 2-3 (emphasis added). 14 In a footnote in its opposition brief, the DOJ takes the position that section 1373 covers “information that assists the federal government in carrying out its statutory responsibilities under the [Immigration and Nationality Act.” Opp. at 39 n.11. This statement only increases confusion about the range of information DOJ believes local officials must be able to share with ICE in order to certify compliance and receive Byrne JAG funds. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 21 of 26 Page 59 of 363 17 federal funds, “it must do so unambiguously” and cannot leave a grant recipient “unable to ascertain what is expected of it”). IV. CONCLUSION By structuring the Byrne JAG program as a broad formula grant, Congress recognized the need for local discretion over law enforcement programs, and created a (non-competitive) source of funding on which local jurisdictions should be able to rely. The new conditions imposed by Attorney General Sessions upend congressional intent. Instead of preserving flexibility for local operations, the new conditions constrain local choices and require localities to adopt federally mandated policies that will make their communities less safe. Instead of preserving a reliable stream of funding, DOJ’s shifting positions force localities to guess at whether DOJ will deem them eligible for funding – and whether they will be able to comply with the conditions on that funding if they accept it. An injunction is needed to halt DOJ’s unlawful effort to impose these conditions and to protect the safety of local communities. Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 22 of 26 Page 60 of 363 18 Dated: October 19, 2017 Respectfully Submitted, COUNTY OF SANTA CLARA JAMES R. WILLIAMS, County Counsel By: /s Laura S. Trice Laura S. Trice Lead Deputy County Counsel Laura S. Trice (pro hac vice) Kavita Narayan (pro hac vice) OFFICE OF THE COUNTY COUNSEL 70 West Hedding Street, East Wing, 9th Floor San Jose, CA 95110-1770 (408) 299-5900 By: /s John C. Grugan John C. Grugan Associate Counsel for the County of Santa Clara John C. Grugan (Attorney No. 83148) Jason A. Leckerman (Attorney No. 87915) Emilia McKee Vassallo (Attorney No. 318428) BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 (215) 665-8500 Attorneys for Amicus Curiae County of Santa Clara Full List of Amici Curiae and Additional Counsel for Amici Curiae Provided Below Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 23 of 26 Page 61 of 363 19 List of Amici Curiae The County of Santa Clara, California; the City of Austin, Texas; the City of Cambridge, Massachusetts; the City of Chelsea, Massachusetts; the City of Chicago, Illinois; Cook County, Illinois; the City and County of Denver, Colorado; the District of Columbia; the International City/County Management Association; the International Municipal Lawyers Association; the City of Iowa City, Iowa; King County, Washington; the City of Los Angeles, California; the City of Madison, Wisconsin; the Metropolitan Area Planning Council; the National League of Cities; the City of New York, New York; the City of Oakland, California; the City of Pittsburgh, Pennsylvania; the City of Portland, Oregon; the City of Providence, Rhode Island; the City of Rochester, New York; the City of Sacramento, California; the City and County of San Francisco, California; the County of Santa Cruz, California; the City of Seattle, Washington; the City of Somerville, Massachusetts; The United States Conference of Mayors; and the City of West Hollywood, California. Additional Counsel for Amici Curiae Anne L. Morgan City Attorney, City of Austin P.O. Box 1546 Austin, TX 78767-1546 Attorney for the City of Austin, Texas Nancy E. Glowa City Solicitor, City of Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Attorney for the City of Cambridge, Massachusetts Cheryl Watson Fisher City Solicitor City of Chelsea Law Department 500 Broadway, Room 307 Chelsea, MA 02150 Attorney for the City of Chelsea, Massachusetts Edward N. Siskel Corporation Counsel of the City of Chicago 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 Attorney for the City of Chicago, Illinois Kimberly M. Foxx States Attorney for Cook County 69 W. Washington, 32nd Floor Chicago, IL 60602 Attorney for Cook County Kristin M. Bronson City Attorney, City and County of Denver 1437 Bannock Street, Room 353 Denver, CO 80202 Attorney for the City and County of Denver, Colorado Karl A. Racine Attorney General, District of Columbia One Judiciary Square 441 4th Street NW, Suite 1100 South Washington, DC 20001 Attorney for the District of Columbia Charles W. Thompson, Jr. Executive Director, General Counsel International Municipal Lawyers Association 51 Monroe Street, Suite 404 Rockville, MD 20850 Attorney for the International Municipal Lawyers Association Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 24 of 26 Page 62 of 363 20 Eleanor M. Dilkes City Attorney, City of Iowa City 410 E. Washington St. Iowa City, IA 52240 Attorney for the City of Iowa City, Iowa Dan Satterberg King County Prosecuting Attorney 516 Third Avenue, W400 Seattle, WA 98104 Attorney for King County, Washington Michael N. Feuer City Attorney, City of Los Angeles 200 N. Main Street, 800 CHE Los Angeles, CA 90012 Attorney for the City of Los Angeles, California Michael P. May City Attorney, City of Madison 210 Martin Luther King Jr. Blvd, Room 401 Madison, WI 53703 Attorney for the City of Madison, Wisconsin Jennifer R. García General Counsel 60 Temple Place, 6th Floor Boston, MA 02111 Attorney for the Metropolitan Area Planning Council Zachary W. Carter Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Attorney for the City of New York, New York Barbara J. Parker City Attorney, City of Oakland One Frank H. Ogawa Plaza, Sixth Floor Oakland, CA 94612 Attorney for the City of Oakland, California Lourdes Sánchez Ridge City Solicitor & Chief Legal Officer, City of Pittsburgh 313 City-County Building 414 Grant Street Pittsburgh, PA 15219 Attorney for the City of Pittsburgh, Pennsylvania Tracy Reeve City Attorney, City of Portland 430 City Hall 1221 SW 4th Avenue Portland, OR 97204 Attorney for the City of Portland, Oregon Jeffrey Dana City Solicitor, City of Providence 444 Westminster Street, Suite 220 Providence, RI 02903 Attorney for the City of Providence, Rhode Island Brian F. Curran Corporation Counsel, City of Rochester 30 Church St., Room 400A Rochester, NY 14614 Attorney for the City of Rochester, New York Matthew Ruyak Interim City Attorney, City of Sacramento 915 I Street, Fourth Floor Sacramento, CA 95814 Attorney for the City of Sacramento, California Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 25 of 26 Page 63 of 363 21 Dennis J. Herrera City Attorney, City and County of San Francisco City Hall Room 234 One Dr. Carlton B. Goodlett Pl. San Francisco, CA 94102 Attorney for the City and County of San Francisco, California Dana McRae County Counsel, County of Santa Cruz 701 Ocean Street, Room 505 Santa Cruz, CA 95060 Attorney for the County of Santa Cruz, California Peter S. Holmes City Attorney, City of Seattle 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 Attorney for the City of Seattle, Washington Francis X. Wright, Jr. City Solicitor, City of Somerville 93 Highland Avenue Somerville, MA 02143 Attorney for the City of Somerville, Massachusetts Michael Jenkins City Attorney, City of West Hollywood JENKINS & HOGIN, LLP Manhattan Towers 1230 Rosecrans Avenue, Suite 110 Manhattan Beach, CA 90266 Attorney for the City of West Hollywood, California Case 2:17-cv-03894-MMB Document 45 Filed 10/19/17 Page 26 of 26 Page 64 of 363 Page 65 of 363 Page 66 of 363 Page 67 of 363 Page 68 of 363 Page 69 of 363 Page 70 of 363 Page 71 of 363 Page 72 of 363 Page 73 of 363 Page 74 of 363 Page 75 of 363 Page 76 of 363 Page 77 of 363 Page 78 of 363 Page 79 of 363 Page 80 of 363 Page 81 of 363 Page 82 of 363 Page 83 of 363 Page 84 of 363 Page 85 of 363 Page 86 of 363 Page 87 of 363 Page 88 of 363 Page 89 of 363 Page 90 of 363 Page 91 of 363 Page 92 of 363 Page 93 of 363 Page 94 of 363 Page 95 of 363 Page 96 of 363 Page 97 of 363 Page 98 of 363 Page 99 of 363 Page 100 of 363 Page 101 of 363 Page 102 of 363 Page 103 of 363 Page 104 of 363 Page 105 of 363 Page 106 of 363 Page 107 of 363 Page 108 of 363 Page 109 of 363 Page 110 of 363 Page 111 of 363 Page 112 of 363 C AMENDMENT OF SOLICITA TlONIMODIFICA TlON OF CONTRACT r'CONTRACT 10 CODE IPAGE OF PAGES 1 I 32.AMENDMENTIMODIFICATION NO 3.EFFECTIVE DATE 4.REOUISmoNIPURCHASE REO.NO.r-PROJECT NO.(If applical:Je) POOO03 09/25/2014 192114FSFCOCOWR02.11 6.ISSUED BY CODE ICE/DM/DC-LAGUNA 7.ADMINISTERED BY (If OIher!1lan Item 6}CODE IICE/DM/DC-LAGUNA ICE/Detent Mngt/Detent Contract-LAG ICE/Detent Mngt/Detent Contract-LAG Immigration and Customs Enforcement Immigration and Customs Enforcement Office of Acquisition Management Office of Acquisition />lanagement 24000 Avila Road,Room 3104 24000 Avila Road,Room 3104Attn:Natasha Nguyen (949}425-7030 Attn:Natasha Nguyen,(949)425-7030Laguna Niguel CA 92677 Laguna Niguel CA 92677 8.NAME AND ADDRESS OF CONTRACTOR (No.•_t...-y.$I;W_ZlPC-)(x)eA.AMENDMENT OF SOLICITATION NO I-- aNTRA COSTA COUNTY INC 651 PINE ST 7TH FLOOR 9B.DATEO(SEElrEM1f} RTINEZ CA 945531229 x lOA.MODIFICATION OF CONTRACTIORDER NO.IGA 11-09-0034 HSCEDM-14-F-IG125 lOB.DATED (SEE ITEM 13) CODE 0076692160000 FACILITY CODE 05/0112014 11• ... MA ._The &bOW number8d IICIJOIationis ameneed ~1811011h in 118m14.The I\Our and elale speCifMtdlOr receipt OfOIlers ::.:"extendecI.:.:is nol extended 011."must acknOWledge receipl Of II1is amendment pnor to IIIe hour one!elate specI1Ied in IIIe 8OIlcitetion Of aa amended, by ono Of !he toUDWingmethod&:(e)By completing ltams B and 15.and returning copies 01 the amendment Ibl By adcnOWled~receipt olll1J$amen<ImenI on eacn copy OfIIIe Offer submlnod;or (e)By seplItOle loner Of Iologtam vottiC'h indudes a ref8l9r1CO10 the soIicitallon and amendment numbers.FAILURE OF YOUR ACKNO'M..EDGEMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR ANDOATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER Jfby wtuo 01 tnis amondment you descre 10 CI\ang8 an oIIor 0lr0ady SOIbmillGCl.SU<:I'IcIIango may bo rnacIa by telegram Of lenar.pfOVlde<l eacn lelegram Of leiter maltes reference to IhO 8OIicitalion and IIUSamendment.and is recei'tQd prior 10 IIIe opening I\cur and dale spoofl8Cl. 12.ACCOUNTING AND APPROPRIATION DATA (Ilrequirec1)Net Increase:$26,400.00 ERODETN R02 BA 31-12-00-000 18-63-0500-00-00-00-00 GE-25-72-00 U.THIS IftM ONLY APPLJ£S TO MCOIflCAllON OF CONTRACTSIORDERS.IT MODIFIES THE CONTRACTIORDER NO. AS DESCRIBED IN IlEM 14. CHECK ONE B.THE ABOVE NUMBERED CONTRACTIORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES(such as chang8S in psying ollfce.appropfialion Date. OIC.}SET FORTH IN ITEM 14.PURSUANT TO THE AUTHORITY OF FAR 43.103(b). A.~'~iR~~~ ~~Efo'1ISSUED PURSUANT TO:(Specify aul/lontyJ THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CONTRACT C THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY v': x u, BILATERAL type Or """""""liOn If""IlUlnOrrlyJ - Mutual Agreement Eo IMPORTANT: COntnldor is not x is mquirod to sign this document and rotum 1 copies 10 !he iSSU1t19e!ftce 14.DESCRIPTION OF MlENDMENTIMODIFICATION (OllJsnizer1lly UCF 5eCIiOtt headings.illcludltlfl $OIic:ilrlfionloonlTact subjocl mane' •••hero feasible.) DUNS Number: 007669216 Alternate COR/Finance POC: Tom Weissmiller at 415-844-5604 or e-mail at thomas.j.weissmiller@ice.dhs.gov Program pac: Gwen Zander at 661-328-4575 or e-mail at gwen.zander@ice.dhs.gov This modification is issued to install Video Teleconferencing (VTC) system at Contra Costa County (West Detention facility) as a streamline to support with the Immigration Court proceeding for detainees who are currently in ICE/ERa custody in accordance with attached Visiting Center Plans for VTC. Continued ... ExcepI o.provided h"",;",aDterms and CCMiIicns Ofthe doc:umenI (e\8AltlCOd in 11011IeA Of lOA.osllere\Oforo c:nonged. rernolftS unchangad and in full fOrat ond elled. 15A NAME AND TITLE OF SIGNER (Type or prlnl)lOA.NAME AND nns OF CONTRACTING OFFICER (Type or plinf) Roberta J.Halls 16C.DATE SIGNED STANDARD FORM 30 «REV lG.83) Pf8$Cnl>ed by GSA FAR (48 CFR)53.243 Page 113 of 363 REFERENCE NO.OF DOCUMENT BEING CONTINUED CONTINUAnONSHEET IGA 1l-09-0034/HSCEDM-14-F-IGI25/P00003 3 NAME Of OFFEROR OR CONTRACTOR CONTRA COSTA COUNTY INC ITEM NO. (Al SUPPLIESlSERIIICES (8) AMOUNT (F) Exempt Action: Y LIST OF CHANGES: Reason for Modification : Additional Work Total Amount for this Modification: $26,400.00 New Total Amount for this Award: $2,195,300.00 Obligated Amount for this !>lodification:$26,400.00 New Total Obligated Amount for this Award: $2,195,300.00 FOB: Destination Period of Performance: 07/01/2014 to 10/15/2014 Add Item 0002 as follows: 0002 TO INSTALL VTC SYSTEM FOR ICE USE AT CONTRA COSTA COUNTY (WEST DETENTION FACILITY). County shall invoice only for work actually performed. The telecom not to exceed costs are as follows: $2,500 for Shielded Cat 6 cable run from wiring closet in building 4 to room 1 in visitation. Two sets of cable will be run to each data box. $2,500 for Shielded Cat 6 cable run from wiring closet in building 4 to room 2 in visitation. Two sets of cable will be run to each data box. $2,500 for Shielded Cat 6 cable run from wiring closet in building 4 to room 13 in visitation. Two sets of cable will be run to each data box. $2,500 for Shielded Cat 6 cable run from wiring closet in building 4 to ICE Admin office in visitation. Two sets of cable will be run to each data box. $1,000 for phone line to room 3 in visitation. $1,000 for phone line to be used by fax machine in room 3. $10,000 to run fiber from the MPOE to wiring closet building 4. $3,000 for any unexpected costs. $1,400 to install electrical outlets in rooms 2 and 3. TOTAL ESTIMATE NOT TO EXCEED: $26,400.00 Continued ... QUANTITY UNIT (e)(0) 1 LO UNIT PRICE (E) 26,400.00 26,400.00 OPTIONAL F0IU0I336 I_I a_brCSA FAR I" c;FR)U."O Page 114 of 363 REFERENCE NO.OF DOCUMENT BEING CONTINUED CONTINUAnON SHEET IGA 1l-09-0034/HSCEDM-14-f-IG125/P00003 3 NAME OF OFFEROR OR CONTRACTOR CONTRA COSTA COUNTY INC SUPPl.IESlSERVlCES (B) AMOUNT (F) ITEM NO. (A) Task Order HSCEDM-14-F-IG125 is hereby issued against US Department of Justice, Marshals Inter-governmental Service Agreement (IGA) Number 11-09-0034 for the detention and care of aliens housed at Contra Costa County, CA. All other terms and conditions refernced within the IGA remain the same. OUANTITY ~IT (C) 0) UNIT PRICE (E) OPTIONAl.FOAMSM I_Is_,.....,GSA FAR (41 CFR) $lIIO Page 115 of 363 Page 116 of 363 Page 117 of 363 Page 118 of 363 Page 119 of 363 Page 120 of 363 Page 121 of 363 Page 122 of 363 Page 123 of 363 Page 124 of 363 Page 125 of 363 Page 126 of 363 Page 127 of 363 Page 128 of 363 Page 129 of 363 Page 130 of 363 Page 131 of 363 Page 132 of 363 Page 133 of 363 Page 134 of 363 Page 135 of 363 Page 136 of 363 Page 137 of 363 Page 138 of 363 Page 139 of 363 Page 140 of 363 Page 141 of 363 Page 142 of 363 Page 143 of 363 Page 144 of 363 Page 145 of 363 Page 146 of 363 Page 147 of 363 Page 148 of 363 Page 149 of 363 Page 150 of 363 Page 151 of 363 Page 152 of 363 Page 153 of 363 Page 154 of 363 Page 155 of 363 Page 156 of 363 Page 157 of 363 Page 158 of 363 Page 159 of 363 Page 160 of 363 Page 161 of 363 Page 162 of 363 Page 163 of 363 Page 164 of 363 Page 165 of 363 Page 166 of 363 Page 167 of 363 Page 168 of 363 Page 169 of 363 Page 170 of 363 Page 171 of 363 Page 172 of 363 Page 173 of 363 Page 174 of 363 Page 175 of 363 Page 176 of 363 Page 177 of 363 Page 178 of 363 Page 179 of 363 Page 180 of 363 Page 181 of 363 Page 182 of 363 Page 183 of 363 Page 184 of 363 Page 185 of 363 Page 186 of 363 Page 187 of 363 Page 188 of 363 Page 189 of 363 Page 190 of 363 Page 191 of 363 Page 192 of 363 Page 193 of 363 Page 194 of 363 Page 195 of 363 Page 196 of 363 Page 197 of 363 Page 198 of 363 Page 199 of 363 Page 200 of 363 Page 201 of 363 Page 202 of 363 Page 203 of 363 Page 204 of 363 Page 205 of 363 Page 206 of 363   Immigration  1  Contra Costa County Probation Department Policy Manual Immigration 428.1 DEFINITIONS 1. Individual – An “individual” is any person with whom the Probation Department interacts or otherwise encounters while in performance of the authorized functions of the Department, including, but not limited to, adults or juveniles under the Department’s supervision, juveniles in the custody of the Department, victims, witnesses, and those defendants in the criminal courts for whom the Department prepares reports. 2. ICE – “ICE” is the United States Immigration and Customs Enforcement. 3. Probation ICE Liaison – The “Probation ICE Liaison” is the Probation Manager designated by the Chief Probation Officer as the person responsible for communicating with ICE on matters pertaining to immigration. The Chief Probation Officer will inform staff of who she/he has designated as the Probation ICE Liaison. 428.2 PURPOSE AND SCOPE The purpose of this policy is to provide guidelines to Contra Costa County Probation staff concerning cooperation with ICE on matters involving the immigration status of individuals. 428.3 POLICY Contra Costa County is committed to treating everyone fairly, without regard to immigration status. The County also has an obligation to follow state and federal law including, but not limited to, 8 U.S.C. Section 1373. It is the policy of this Department not to inquire into or report the immigration status of any individual, absent a legal mandate to do so. The staff of the Probation Department are not to perform any of the functions of an immigration officer. The purpose of this policy is to clarify this Department’s legal responsibilities and delineate the role of Probation staff in responding to immigration matters. 428.4 VICTIMS AND WITNESSES To encourage crime reporting and cooperation in the investigation of criminal activity, all individuals, regardless of their immigration status, must feel secure that contacting or being addressed by members of the Probation Department will not lead to immigration inquiry and/or deportation. Staff shall treat all individuals equally and without regard to race, color, national origin or immigration status. 428.5 PROVIDING INFORMATION/ASSISTANCE TO ICE Probation staff shall refer all ICE inquiries to the Probation ICE Liaison, or in the absence of the Probation ICE Liaison, to the Assistant Chief Probation Officer or Chief Probation Officer. The primary role of the Probation ICE Liaison is to respond to ICE requests about an individual’s citizenship or immigration status. The Probation Department shall not use Department resources or personnel to investigate, interrogate, Policy  428 Page 207 of 363   Immigration  2  detain, detect or arrest persons for immigration enforcement purposes, including any of the following: A) Providing information regarding a person’s release date(s), except as set forth in section 428.7 below; B) Providing Probation appointment date(s) C) Providing personal information as defined in Section 1798.3 of the Civil Code, about an individual, including, but not limited to, the individual’s home address, work address or telephone number unless the information is available to the public The Probation ICE liaison shall keep a written record of all communication with ICE that includes the following information: who requested information and the type of information requested, the ICE contact, the date and type of information that was disseminated and by whom, the identifying information about the individual who is the subject of the inquiry that includes Probation ID Number (PID), name and date of birth, current charges, and the name of the assigned Deputy Probation Officer. Sworn Probation Department staff who are in the field may choose to render mutual aid per Penal Code Section 830.5(a)(5)(A) to any law enforcement agents, including ICE agents, when there is a threat to public safety or the ICE agent’s safety. If such assistance is rendered, the staff shall complete an Incident Report. Such aid should not result in Probation staff arresting individuals for civil immigration violations. 428.6 CONFIDENTIAL JUVENILE MATTERS ICE detainers, notification requests and/or transfer requests for individuals involved in juvenile cases will not be honored at the John A. Davis Juvenile Hall or the Orin Allen Youth Rehabilitation Facility. The individual who is the subject of the ICE detainer, notification request and/or transfer request, and his or her guardian, if applicable, shall be given a copy of the documentation received from ICE regarding his or her detainer, notification request or transfer request, along with written notice that the Probation Department will not be complying with that ICE request. (Gov. Code Section 7283.1.) Pursuant to Welfare and Institutions Code Section 831, Probation staff shall not provide information regarding an individual involved in a juvenile case to any Federal Agency absent a court order, as required by Welfare and Institutions Code Section 827. 428.7 NOTICE TO INDIVIDUALS IN PROBATION CUSTODY WHO ARE CHARGED AS ADULTS In all cases other than those set forth in section 428.6, above, when ICE has issued a hold, notification, or transfer request for an individual charged as an adult who is being housed at Juvenile Hall, that individual shall be given a copy of the documentation received from ICE regarding his or her hold, notification, or transfer request, along with written notice as to whether the Probation Department will or will not comply with that ICE request. If the Probation Department notifies ICE that an individual in its custody is being or will be released on a certain date, a copy of that notification shall be provided in writing to the individual and his/her attorney or to one additional person who the individual may designate (Gov. Code Section 7283.1). No individual who is otherwise ready to be released from custody will be detained solely for the purpose of making notification to immigration authorities, except in cases where the Probation Department is in possession of a valid arrest warrant. 428.8 ICE INTERVIEWS FOR INDIVIDUALS IN PROBATION CUSTODY AND WHO ARE CHARGED AS ADULTS In advance of any interview regarding civil immigration violations between ICE and an individual charged as an adult in the Probation Department’s custody, the Probation Department shall provide the individual with a written consent form that explains the purpose of the interview, that the interview is voluntary, and that he/she may decline to be interviewed or may choose to be interviewed only with his/her attorney present. Page 208 of 363   Immigration  3  (Gov. Code Section 7283.1(a).) Upon request of an ICE interview and prior to obtaining the individual’s signature on a consent form, the Juvenile Hall Intake staff will notify the individual’s attorney of record. The attorney of record will be given the opportunity to provide advice regarding their client’s consent to the requested interview before the Probation Department proceeds. Any interview for an individual in the Probation Department’s custody shall be facilitated through the Probation ICE Liaison, after consultation with the Assistant Chief Probation Officer or the Chief Probation Officer. 428.9 IMMIGRATION STATUS IN REPORTS AND FILE DOCUMENTATION Probation staff shall not ask an individual about his or her immigration status or document an individual’s immigration status in a Court report. Staff may ask an individual about his or her language skills, place of birth, and related social history factors and may document that information in Court reports. 428.10 STAFF INQUIRIES WITH ICE – WHEREABOUTS If Probation staff suspects that an individual under the Probation Department’s supervision has been deported or is in the custody of ICE, and that individual’s matter is still active, staff shall contact the ICE Liaison. The ICE Liaison may obtain information on the individual’s whereabouts by utilizing the ICE Online Detainee Locator System (https://locator.ice.gov/odls/#/index), in addition to any other available means to check whereabouts which may include, contacting the individual’s attorney of record, and checking other available records/information sources. Probation staff shall discuss the matter with their supervisor to determine the appropriate course of action in order to retain jurisdiction and/or toll time in the event that individual returns to the United States. Appropriate actions may include submitting a petition to revoke with a warrant request for adult cases or file a Welfare and Institutions Code Section 777 notice of violation for juvenile cases. Revision Date – 12/11/2017 Page 209 of 363 Contra Costa County Office of the Sheriff General Policy and Procedure CCCSO NUMBER: 1.02.28 RELATED ORDERS: AB 4 (Trust Act), AB 2792 (Truth Act), SB 54 (California Values Act), Gov’t. Code §§7282- 7284.6, SB 29 Civil Code §1670.9,8 CFR 287.7, 8 USC §1101(a)(43), 8 USC §1373, 8 USC §1644 ISSUE DATE: 12-3-2013 REVISION DATE: 12/20/2017 CLEARANCE: Office of the Sheriff CHAPTER: Law Enforcement Role and Authority SUBJECT: IMMIGRATION STATUS I. POLICY. A. No person shall be contacted, detained, or arrested solely on the basis of his or her immigration status. B. The Contra Costa County Office of the Sheriff will equally enforce the laws and serve the public without regard to immigration status. Except as specifically set forth in this Policy, the immigration status of a person, and the lack of immigration documentation, should have no bearing on the manner in which Deputies execute their duties. C. No Departmental funds nor personnel may be used to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. Nevertheless, Office of the Sheriff personnel may send to, or receive from, immigration authorities (including ICE), information regarding the immigration status, lawful or unlawful, of any individual (8 USC §1373) (see IV.C.). II. DEFINITIONS. A. IMMIGRATION DETAINER. An Immigration Detainer is a request by the U.S. Department of Homeland Security’s Immigration and Customs Enforcement Agency (ICE) that law enforcement agencies advise ICE, prior to releasing an individual, in order for ICE to arrange to assume custody for the purpose of deportation. The ICE Detainer Request is presented on ICE Form I- 247A. These requests are processed in accordance with IV.E. below. III. GENERAL. A. IMMIGRATION ENFORCEMENT JURISDICTION. ICE has primary responsibility to investigate and enforce federal immigration laws. Office of the Sheriff personnel shall not assist ICE in the enforcement of federal immigration laws except as set forth below. Assistance to ICE personnel Page 210 of 363 in personal distress will be provided. Notwithstanding “A” above: 1. Sheriff’s Personnel may investigate, enforce, or detain upon reasonable suspicion of, or arrest for a violation of 8 USC 1326(a) [illegal reentry by a previously deported or removed alien] that is detected during an unrelated law enforcement activity. 2. Sheriff’s Personnel may respond to a request from immigration authorities for information about a specific person’s criminal history. 3. Sheriff’s Personnel may conduct enforcement or investigative duties associated with a joint law enforcement task force, including the sharing of confidential information with other law enforcement agencies for purposes of task force investigations, but only if the specific provisions set forth in Gov. Code §7284.6 (b)(3)(A) and (B) and (C) are met. 4. Sheriff’s Personnel may grant immigration authorities access to interview an individual in our custody. All interview access shall comply with IV.H (“TRUTH Act Notifications”). 5. Sheriff’s Personnel may send to ICE, and receive from ICE information regarding the immigration status of any individual (see IV.C.). (Do not confuse information regarding immigration status with information regarding the anticipated release date of individuals with immigration status, which information may not be released except as set forth in this policy at IV.G. and IV.K.) B. LAW ENFORCEMENT CONTACTS. Non-consensual contacts, detentions, and arrests shall be based on reasonable suspicion or probable cause. A Deputy shall not initiate any law enforcement action based on observations relating to immigration status (such as lack of documentation), but such issues may, as part of several factors, be relevant to the direction and analysis of an investigation. C. THE CALIFORNIA VALUES ACT. 1. California law enforcement agencies shall not: a. Use agency moneys or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration law enforcement purposes, including any of the following: 1. Inquiring into an individual’s immigration status (but see III.B. above, and IV.C. below); 2. Detaining an individual on the basis of a hold request; 3. Providing information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a Notification Request from ICE that satisfies the conditions set forth in IV.G. and IV.K.; 4. Providing personal information about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public; 5. Making or intentionally participating in arrests based on civil immigration warrants; Page 211 of 363 6. Performing the functions of an immigration officer, whether pursuant to 8 USC 1357(g) or any other law, regulation, or policy, whether formal or informal; b. Place peace officers under the supervision of federal agencies for the purposes of immigration enforcement. c. Use Immigration Authorities as interpreters for law enforcement matters relating to individuals in custody. d. Transfer an individual to immigration authorities unless authorized by a judicial warrant. e. Provide office space exclusively dedicated for immigration authorities for use within a law enforcement facility. 2. Deputies retain discretion to cooperate with immigration authorities if doing so does not violate any Federal, state, or local law or policy, and only where permitted by the California Values Act. The California Values Act permits communications between Office of the Sheriff personnel and immigration authorities “regarding the citizenship or immigration status …of an individual” (see IV.C.). D. FEDERAL DETAINEES. Wherever this policy refers to, or relates to, persons in Sheriff’s Office custody, such policy provisions do not apply to individuals in the custody of the Department of Homeland Security who are detained in a county detention facility pursuant to a contract with the Federal government (Gov. Code §7310(b)). IV. PROCEDURES. A. IMMIGRATION VIOLATION COMPLAINTS. 1. If members of the public contact the Office of the Sheriff to report suspected immigration violations, such persons should be directed to ICE. B. IMMIGRATION STATUS. 1. A Deputy’s suspicion about any person’s immigration status shall not be used as a sole basis to initiate contact, detain, or arrest that person unless such status is reasonably relevant to the investigation of a crime, such as trafficking, smuggling, harboring, and terrorism. 2. Sweeps intended solely to locate and detain undocumented immigrants are not permitted. Deputies will not participate in ICE-organized sweeps to locate and detain undocumented aliens. Office of the Sheriff personnel shall not provide support services, such as traffic control, during an ICE operation. C. COMMICATIONS WITH ICE. Office of the Sheriff personnel may send to, or receive from, immigration authorities (including ICE), information regarding the immigration status, lawful or unlawful, of any individual (8 USC §1373), including specifically any alien in the United States (8 USC §1644). Such information as is permitted to be sent or received pursuant to Page 212 of 363 this subsection may be maintained and may be exchanged with any other Federal, State, or local government entity (8 USC §1373). (Compliance with 8 USC §1373 and 8 USC §1644 is specifically permitted pursuant to Gov. Code 7284.6(e)). D. WITNESSES AND VICTIMS. 1. The immigration status of crime victims or witnesses should not be probed unless it is reasonably relevant to the investigation of a crime. 2. U-Visa Nonimmigrant Status. Federal law grants immigration benefits to victims of qualifying crimes who have been helpful to the investigation and/or prosecution of the case. A law enforcement certification is prepared and issued by specifically designated administrative personnel. E. ICE DETAINER REQUESTS. The Office of the Sheriff occasionally receives Immigration Detainer requests on ICE Form I-247A. A detainer serves to advise that ICE seeks both notification of the anticipated release of a removeable alien from custody and his or her continued detention in order for ICE to arrange to assume custody. The request to detain will not be honored (see IV.F.). The request to Notify will be honored only under the circumstances set forth in IV.G. and IV.K. below. F. IMMIGRATION DETAINERS. Inmates who are eligible for release from custody shall not be held, pursuant to an immigration hold, beyond the time he or she would otherwise be released. G. IMMIGRATION NOTIFICATION. The Office of the Sheriff will provide release information in response to individual-specific ICE requests for notification (ICE Form I-247A), but only in compliance with the conditions set forth in IV.L. Individuals meeting the conditions set forth in IV.L. will be released to ICE custody (but shall not be detained to do so), if immigration authorities are present at a detention facility’s Release Window at the time of an individual’s release. 1. Individuals meeting the conditions set forth in IV.K. and released to ICE custody at the time of their release, may not be converted into ICE Detainees. Immigration authorities desiring to house such persons as ICE Detainees at WCDF must escort such persons outside of our facility, and then return them, via Intake, to be newly booked as ICE Detainees for transport to WCDF. H. TRUTH ACT NOTIFICATION (Gov. Code 7283.1; AB-2792). Upon receiving any ICE notification request on Form I-247A, the named inmate shall be provided a copy of the respective form. If ICE is to be notified of the proposed release of an inmate, he or she shall be notified as well. Additionally, efforts will be made to notify the inmate’s attorney or an additional person of the inmate’s choosing. 1. Immigration authorities shall be granted access to interview inmates following compliance with the Truth Act notification provision: In advance of any interview between ICE and an inmate, the inmate shall be provided with a written consent form either consenting or declining to participate in the interview. Standardized copies of this form are available (under the heading AB 2792 Forms) at http://www.bscc.ca.gov/m_divisions.php Page 213 of 363 I. EQUALITY OF ACCESS. All persons arrested for a criminal offense and held in our custody will have equal access to custody programs if otherwise program- eligible. J. COURT ORDERS. Court Orders and warrants are entirely separate and should not be confused with Form I-247A requests. Duly issued warrants will be honored. K. CONDITIONS FOR ICE NOTIFICATION. ICE requests for notification of the anticipated release date of an inmate will be honored only with respect to inmates who are being held for certain charges or who have specific prior convictions. 1. These conditions include (but are not limited to) inmates who have been convicted of (i) of a serious felony [PC 1192.7(c)] or a violent felony, [PC 667.5(c)] (see listing below). a. As used in PC 1192.7(c), “serious felony” means any of the following: (1) murder or voluntary manslaughter (2) mayhem (3) rape (4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person (5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person (6) lewd or lascivious act on a child under 14 years of age (7) any felony punishable by death or imprisonment in the state prison for life (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm (9) attempted murder (10) assault with intent to commit rape or robbery (11) assault with a deadly weapon or instrument on a peace officer (12) assault by a life prisoner on a non-inmate (13) assault with a deadly weapon by an inmate (14) arson (15) exploding a destructive device or any explosive with intent to injure (16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem (17) exploding a destructive device or any explosive with intent to murder (18) any burglary of the first degree (19) robbery or bank robbery (20) kidnapping (21) holding of a hostage by a person confined in a state prison (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life Page 214 of 363 (23) any felony in which the defendant personally used a dangerous or deadly weapon (24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine- related drug, or any of the precursors of methamphetamines (25) any violation of PC 289(a) where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person (26) grand theft involving a firearm (27) carjacking (28) any felony offense, which would also constitute a felony violation of PC 186.22 (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation (30) throwing acid or flammable substances (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft (34) commission of rape or sexual penetration in concert with another person (35) continuous sexual abuse of a child (36) shooting from a vehicle (37) intimidation of victims or witnesses (38) criminal threats (39) any attempt to commit a crime listed in this subdivision other than an assault (40) any violation of PC 12022.53 [Enhancements for use of a firearm in 18 specified felonies] (41) a violation of subdivision (b) or (c) of Section 11418 (42) any conspiracy to commit an offense described in this subdivision (43) And any offense committed in another state, which if committed in California, would be punishable as a listed serious felony b. As used in PC 667.5(c), “violent felony” means any of the following: (1) Murder or voluntary manslaughter (2) Mayhem (3) Rape (4) Sodomy (5) Oral copulation (6) Lewd or lascivious act Page 215 of 363 (7) Any felony punishable by death or imprisonment in the state prison for life (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved, or any felony in which the defendant uses a firearm which use has been charged and proved (9) Any robbery (10) Arson (11) Sexual penetration (12) Attempted murder (13) A violation of PC 18745, 18750, or 18755 (explosives) (14) Kidnapping (15) Assault with the intent to commit a specified felony, in violation of Section 220 (16) Continuous sexual abuse of a child (17) Carjacking (18) Rape, spousal rape, or sexual penetration (19) Extortion, which would constitute a felony violation of PC 186.22 (20) Threats to victims or witnesses, which would constitute a felony violation of PC 186.22 (21) Any burglary of the first degree, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary (22) Any violation of PC 12022.53 [Enhancements for use of a firearm in 18 specified felonies] (23) A violation of PC 11418(b) or (c)(weapon of mass destruction) (24) And any offense committed in another state, which if committed in California, would be punishable as a listed violent felony 2. Notification requests will be honored for any conviction or prior conviction for a felony punishable by imprisonment in the state prison. 3. Notification requests will be honored for any person who is a current registrant on the California Sex and Arson Registry (CSAR) as a sex offender pursuant to PC 290 or as an arson offender pursuant to PC 457.1 4. Notification requests will be honored for (i) any felony conviction within the last 15 years, or (ii) any misdemeanor conviction within the past five years, that is punishable as either a misdemeanor or a felony (i.e.: “wobbler”) involving the following specified crimes: (A) Assault (B) Battery (C) Use of threats (D) Sexual abuse, sexual exploitation, or crimes endangering children (E) Child abuse or endangerment (F) Burglary, robbery, theft, fraud, forgery, or embezzlement Page 216 of 363 (G) Driving under the influence of alcohol or drugs, but only for a felony conviction (H) Obstruction of justice (I) Bribery (J) Escape (K) Unlawful possession or use of a weapon, firearm, explosive device, or weapon of mass destruction (L) Possession of an unlawful deadly weapon, under the Deadly Weapons Recodification Act of 2010 (PC 16000) (M) An offense involving the felony possession, sale, distribution, manufacture, or trafficking of controlled substances (N) Vandalism with prior convictions (O) Gang-related offenses (P) An attempt, or any conspiracy, to commit an offense specified in this section (Q) A crime resulting in death, or involving the personal infliction of great bodily injury (R) Possession or use of a firearm in the commission of an offense (S) An offense that would require the individual to register as a sex offender (T) False imprisonment, slavery, and human trafficking (U) Criminal profiteering and money laundering (V) Torture and mayhem (W) A crime threatening the public safety (X) Elder and dependent adult abuse (Y) A hate crime (Z) Stalking (AA) Soliciting the commission of a crime (AB) An offense committed while on bail or released on his or her own recognizance (AC) Rape, sodomy, oral copulation, or sexual penetration (AD) Kidnapping (AE) A violation of CVC 20001(c) 5. Notification requests should also be honored for any federal conviction of any crime that meets the definition of an aggravated felony as set forth in the Immigration and Nationality Act (8 U.S.C. Sec. 1101 at Section 1101(a)(43)(A) to (P). The full listing of specified crimes follows: The term "aggravated felony" means – (A) murder, rape, or sexual abuse of a minor (B) illicit trafficking in a controlled substance (C) illicit trafficking in firearms or destructive devices (D) laundering of monetary instruments if the amount of the funds exceeded $10,000 (E) an offense relating to explosive materials (F) a crime of violence, but not including a purely political offense for which the term of imprisonment is at least one year Page 217 of 363 (G) a theft offense or burglary offense for which the term of imprisonment is at least one year (H) the demand for or receipt of ransom (I) child pornography (J) racketeer influenced corrupt organizations or gambling offenses, for which a sentence of one year imprisonment or more may be imposed (K) owning, controlling, managing, or supervising of a prostitution business; peonage, slavery, involuntary servitude, and trafficking in persons (L) gathering or transmitting national defense information relating to disclosure of classified information relating to sabotage, relating to treason, relating to protecting the identity of undercover intelligence agents or relating to protecting the identity of undercover agents (M) fraud or deceit in which the loss to the victim or victims exceeds $10,000; tax evasion in which the revenue loss to the Government exceeds $10,000 (N) alien smuggling (except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent) (O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph (P) falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument and for which the term of imprisonment is at least 12 months (except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual.) Page 218 of 363 Stand Together CoCo Partner Advisory January 30, 2018 Resources for Families or Individuals at Risk of Federal Deportation Actions Stand Together CoCo is launching an immigration legal services and rapid response network in Contra Costa County. This ensures that all Contra Costa County residents receive due process under the law, including qualified legal representation, if they are detained by Immigration & Customs Enforcement (ICE) or face potential deportation. Still in the early days of organizing, a rapid response hotline dedicated to Contra Costa County residents will launch in March. We are also recruiting community responder teams to serve East, Central, and West County. FOR FAMILIES OR INDIVIDUALS WHO NEED IMMIGRATION LEGAL SERVICES RIGHT NOW (before March 2018): If you need non-emergency advice or counsel from a qualified immigration attorney, please call: 510-365-6812 You’ll reach Catholic Charities of the East Bay, which will help you directly or will connect you to the appropriate community partner. A non-emergency includes applying for residency or citizenship, DACA renewals, or setting up educational workshops about immigration and your Constitutional rights. In the event of an emergency, please call the ACILEP Hotline: 510-241-4011 Your call will be answered by the Alameda County Immigration Legal & Education Partnership (ACILEP), your information will be dispatched to the Contra Costa County team. An emergency is when: • An individual has already been detained or arrested by ICE • Federal immigration activity is in progress at your school, workplace, or in the community • An individual is facing deportation procedures or a hearing Stand Together CoCo is a coalition of community partners including the Contra Costa County Public Defender’s Office, which was authorized by the Board of Supervisors to provide no-cost community education and outreach, rapid response, and legal services to help individuals and families drawn into or at risk of becoming involved with the federal deportation system. The partners include Catholic Charities of the East Bay, Centro Legal de La Raza, Oakland Community Organizations, Monument Impact, Jewish Family and Community Services – East Bay, International Institute of the Bay Area, and Bay Area Community Resources. The partners also work closely with the Diocese of Oakland, First 5 Contra Costa, and the Interfaith Movement for Human Integrity. Page 219 of 363 Page 220 of 363 Page 221 of 363 Page 222 of 363 Page 223 of 363 County Counsel Response Review of Letter from Asian Law Caucus At its meeting on April 12, 2018, the Public Protection Committee asked that the County Counsel’s Office provide the Committee with a response to the legal issues raised in a letter dated April 11, 2108, to Sheriff David Livingston from the Asian Law Caucus alleging that the Sheriff’s Immigration Status Policy No. 1.02.28 was not in compliance with the California Values Act (“SB 54”). Their response follows: Issue #1: Does SB 54 prohibit a Sheriff’s Department from having a policy that allows deputies to use their reasonable suspicion about a person’s immigration status when it is reasonably relevant to an investigation of crimes such as trafficking or smuggling? Response to Issue #1: SB 54 does not restrict local law enforcement from investigating activities that may violate state criminal laws. Government Code section 7284.6, subdivision (f), recognizes that local law enforcement agencies retain jurisdiction of criminal law enforcement matters. Immigration Status Policy Section IV.B.1 states that: A Deputy’s suspicion about any person’s immigration status shall not be used as a sole basis to initiate contact, detain, or arrest that person unless such status is reasonably relevant to the investigation of a crime, such as trafficking, smuggling, harboring, and terrorism. The focus of SB 54 is on restricting the use of local law enforcement for civil immigration enforcement activities. Trafficking, smuggling, harboring, and terrorism are all offenses that may be violations of state criminal laws. Such offenses may be committed by citizens or noncitizens alike and may involve victims or witnesses who are citizens or noncitizens. The Immigration Policy simply recognizes that immigration status may be a factor in the investigations of those crimes. Issue #2: Is Section III.A.1. of the Immigration Policy inconsistent with SB 54 by permitting a deputy to investigate, enforce, detain, or arrest an individual who is suspected of unlawfully re-entering the United States during an unrelated law enforcement activity? Response to Issue #2: The Policy language is not inconsistent with SB 54, but admittedly SB 54 does not provide clear guidance on this issue. Immigration Status Policy Section III.A.1 states that: Sheriff’s Personnel may investigate, enforce, or detain upon reasonable suspicion of, or arrest for a violation of 8 USC 1326(a) (Illegal reentry by a previously deported or removed alien) that is detected during an unrelated law enforcement activity. Page 224 of 363 If, during a law enforcement activity, a deputy discovers that an individual who was previously deported may have unlawfully entered the United States, then a deputy is permitted to investigate, enforce, detain, or arrest such individuals. (CA Gov. Code § 7284.6(b)(1).) SB 54 includes some additional language to suggest that an individual’s prior deportation should have been the result of a conviction of an aggravated felony in order for a deputy to conduct an investigation into the unlawful reentry. (CA Gov. Code § 7284.6(b)(1).) Whether investigations related to unlawful reentry are strictly limited to individuals who were deported following conviction of an aggravated felony is not clear in SB 54. Due to the uncertainty of the intent of the language, the Sheriff’s Office could consider adding language to the Policy regarding aggravated felonies. Issue #3: Is posting of inmate release information on the Sheriff’s website a violation of SB 54 if such information was not already posted prior to the effective date of SB 54? Response to Issue #3: The California Public Records Act specifically identifies inmate release information as public information. (CA Gov. Code § 6254(f)(1), identifying “time and manner of release.”) SB 54 recognizes it is lawful to disclose release date information that is available to the public. (CA Gov. Code § 7284.6(a)(C).) For these reasons, the release information posted by the Sheriff’s Office is public information, the disclosure of which is not prohibited by SB 54. The Sheriff’s Office advises that it has posted inmate release information on its website since approximately February 2018. Other counties, including Orange, San Diego, and Alameda, also post inmate release information on their websites. Page 225 of 363 1 Practice Advisory SB 54 and the California Values Act: A Guide for Criminal Defenders February 2018 This Guide discusses the provisions of SB 54 (De Leon) and the California Values Act, relevant to criminal defense counsel who represent noncitizen clients. This Guide covers: I. Overview of the California Values Act II. Specific Provisions of the California Values Act III. Defending Your Client in light of the California Values Act Appendix I. Enumerated Offenses Permitting Limited Cooperation (Govt C §7282.5) Appendix II. Enumerated Offenses Reduced by Proposition 47 and Proposition 64 That No Longer Permit Cooperation Appendix III. Enumerated Offenses Describing Straight Misdemeanor Offenses Appendix IV. Criminal Defender “Cheat Sheet” on the California Values Act I. OVERVIEW California SB 54 became law in January 2018. This sweeping legislation, is intended to curtail the role of state and local police agencies in federal immigration enforcement. With some exceptions, SB 54 limits these local agencies and others, such as school police and security departments, from using money or personnel “to investigate, interrogate, detain, detect or arrest individuals” for immigration enforcement purposes. To that end, the bill amends the TRUST Act to entirely bar state and local law enforcement’s cooperation with immigration holds, and to restrict their responses to immigration notification and transfer requests (Govt C §§7282, 7282.5)); codifies the California Values Act, prohibiting other activities by these and other state agencies in connection with immigration enforcement (Govt C §§7284- 7284.10)); and repeals Health & S C §11369, which required notice to federal agencies of the arrest of suspected noncitizens in drug-related offenses. Nationally, the California Values Act is the most comprehensive state law of its kind to date. In December 2017, the legal organizations who supported the drafting and passage of the Act sent out a detailed legal letter to Sheriffs’ and County Counsel offices throughout the state, regarding interpretation and implementation of the Act. That letter, as well as other implementation resources, are available under the Implementation Resources subheading at www.iceoutofca.org/ca-values-act-sb54.html. Criminal defense-related provisions of the Act in a nutshell: • State and local law enforcement agencies 1 are prohibited, without exception, from honoring immigration “hold” or detainer requests. This means local law enforcement may no longer detain a defendant 48 hours 1 “California law enforcement agency” means a state or local law enforcement agency, including school police or security departments. Govt C §7284.4. It does not include the California Department of Corrections and Rehabilitation. Ibid. Page 226 of 363 2 beyond the termination of criminal custody in order to better enable immigration authorities to apprehend that person.2 There are no longer any TRUST Act exceptions for holds. • Law enforcement agencies are prohibited from responding to immigration notification requests, meaning requests to supply information about a defendant’s release date 3 -- unless that person comes within a TRUST Act exception 4. • Local Law enforcement agencies may not facilitate the transfer of an individual5 to immigration custody-- unless that person comes within a TRUST Act exception. • Law enforcement agencies are prohibited from inquiring into an individual’s immigration status. • Law enforcement agencies are prohibited from sharing personal information about individuals (e.g., work and home addresses) with immigration -- unless the information is publicly available. • TRUTH Act protections, which require law enforcement to obtain written consent from a person in custody before an ICE interview, have been extended to the California Department of Corrections and Rehabilitation (CDCR). • Law enforcement agencies are prohibited from using immigration agents as translators • Law enforcement agencies are prohibited from performing the functions of an immigration officer (whether through a 287(g) agreement or otherwise). Local law enforcement agencies are prohibited from making arrests on civil immigration warrants. ● Local law enforcement agencies are prohibited from arresting people for the federal criminal offense of unlawful reentry under 8 U.S.C. § 1326(a), unless reentry is detected during an unrelated law enforcement activity and the person was previously convicted of a state or federal offense that meets the immigration definition of an aggravated felony.6 • Law enforcement agencies are prohibited from providing immigration agents exclusive office space. The Attorney General is required by October 1, 2018 to publish model policies for public schools, public libraries, state health facilities, and courthouses, among others, limiting to the fullest extent of the law, their assistance with immigration enforcement. All public schools, state health facilities, and courthouses are required to implement the model policies and other agencies are encouraged to adopt the policies. For any databases operated by state and local law enforcement agencies, the Attorney General is required by October 1, 2018, to publish guidance, audit criteria, and training recommendations aimed at ensuring that those databases limit the availability of information for the purpose of immigration enforcement. State and local law enforcement agencies are encouraged to adopt this guidance. 2 Immigration holds also known as ICE detainers, are requests to a law enforcement agency, to voluntarily detain a person additional time beyond criminal custody. ICE uses the same form (I-247A) to make detainer requests (always prohibited under the Act) as Notification requests (sometimes prohibited under the Act). However, to the degree that ICE requests extra detention, this is now unlawful under California law. For an annotated review of the Form I-247A, see Annotated Detainer Form 2017 at www.ilrc.org/enforcement. 3 A notification request is a request from ICE to a law enforcement agency asking the jail to voluntarily provide the individual’s release date such that ICE has sufficient notice to arrest the individual at release from criminal custody. These requests are made using the DHS Form I-247A. 4 The TRUST Act exceptions have been amended (see e.g., new washout provisions) so counsel and advocates who were familiar with the 2014 Act when it governed immigration detainers should familiarize themselves with its new limitations. 5 A transfer request is a request from immigration authorities asking that a law enforcement agency facilitate the transfer of an individual in its custody to ICE or CBP. 6 “Aggravated felony” is a term of art in immigration law, defined at 8 U.S.C. § 1101(a)(43). See Practice Advisory: Aggravated Felonies at www.ilrc.org/practice-advisory-aggravated-felonies. For guidance on whether a California offense may be an aggravated felony, see the California Quick Reference Chart at www.ilrc.org/chart. Page 227 of 363 3 II. SPECIFICS OF THE BILL A) What does the Values Act do? With some exceptions, SB 54 specifically prohibits state and local law enforcement agencies from investigating, interrogating, detaining, detecting, or arresting persons for immigration enforcement purposes. SB 54 accomplishes this through creating or amending multiple state laws. SB 54 amends TRUST Act provisions in the Government Code, incorporates Proposition 47 protections into the Government Code, codifies the newly enacted California Values Act in the Government Code, extends TRUTH Act provisions to the CDCR, and repeals Health & Safety Code §11369. SB 54 also permits local jurisdictions to enact more stringent policies to further protect noncitizens. B) How was the TRUST Act amended? The TRUST Act of 2014 prohibited local jailors from cooperating with requests from Immigration and Customs Enforcement (ICE) to “hold,” or detain, a noncitizen beyond the time that person would otherwise have been released from criminal custody so that ICE could apprehend that individual. This protection against ICE holds applied to all incarcerated noncitizens, except those whose criminal record brought them within a TRUST Act exception. If an exception applied, then the jailor had discretion to honor the ICE hold request or not. The TRUST Act of 2014 provided no protection against ICE requests for either notification of release date or facilitation of transfer to ICE. SB 54 made three key changes. First, no jailor is permitted to cooperate with an ICE hold request under any circumstances. Second, the TRUST Act now protects incarcerated noncitizens against ICE requests for notification and/or transfer. Third, exceptions to the TRUST Act still exist to permit discretionary cooperation with notification and transfer requests, but the list of exceptions has been slightly amended. Specifically, the following amendments were made to the TRUST Act (Govt C §§7282, 7282.5): • The definition of immigration hold, notification, and transfer request is now found in Govt C §7283 and applies to ICE, U.S. Customs and Border Protection and other immigration authorities (Govt C §7282). • Local law enforcement agencies no longer have discretion to detain anyone on the basis of an immigration hold. Local cooperation with immigration holds is prohibited in every case. (Govt C §7282.5(a)). • Local law enforcement agencies have discretion (but are never required) to cooperate with immigration authorities only when 1) doing so will not violate any Federal, State, local law or policy 7 and 2) when permitted by the California Values Act (Govt C §7282.5 (a)). • Local law enforcement agencies are permitted to notify immigration authorities of release dates or to facilitate transfers of individuals to immigration authorities, only when the individual comes within an exception. (See Govt C §7282.5(a)(1)-(5), (b).) Exceptions apply to persons: a. arrested and held to answer for a serious (Pen C §1192.7(c)), violent (Pen C §667.7(c)), or state prison felony; or b. convicted of a serious or violent or state prison felony; or c. convicted within the past 5 years of a misdemeanor for certain enumerated wobbler offenses or convicted within 15 years of certain enumerated felony offenses (See Govt C §7282.5(a)(3)(A)-(Q)).8 NOTE: The list of enumerated wobbler and felony convictions in Govt C §7282.5(a)(3)(A)-(AE) is identical to the list previously used to permit discretionary holds under the TRUST Act of 2014. See 7 This provides an opportunity for advocates to push for stronger policies which prohibit notification and transfers in more circumstances than the Values Act, or altogether. 8 The Act specifies that the washout periods are from the date of conviction not from the date of release. Page 228 of 363 4 Appendix I. The 15-year washout period for the enumerated felonies is new. Further, note that unlike with serious, violent or state prison felonies, merely being held to answer for the enumerated felonies under §7282.5(a)(3)(A)-(AE) will not suffice to trigger discretion to cooperate with ICE notice and transfer requests. Only a conviction will suffice. ALERT: The list of enumerated felony and wobbler offenses (Govt C §7282.5(a)(3)(A)-(AE)) wrongly includes some straight misdemeanors. See Appendix III. This was a drafting error carried over from the codification of the TRUST Act in 2014. The statute is clear, however, that only misdemeanor convictions from “wobbler” offenses should trigger this exception. Example: Client Sara has a misdemeanor domestic violence Cal. PC §273.5 conviction from 6 years ago. She has now been arrested on a misdemeanor battery Cal PC. §242. ICE issues a notification request. Is Sara protected from a request for notification of her release date? Answer: Yes. The jail cannot respond to ICE’s notification request. The Cal. PC §273.5 misdemeanor is an enumerated wobbler appearing in Govt C §7282.5(a)(3)(B). However, for this misdemeanor to allow discretion to cooperate with ICE, the conviction must have occurred within the last 5 years and Sara’s conviction was 6 years ago. The misdemeanor battery charge also does not give law enforcement a basis to cooperate. A misdemeanor charge may not be the basis of cooperation; only a misdemeanor conviction will suffice. Even if the 242 results in a conviction, the offense erroneously appears in the list of TRUST Act exceptions; it is a straight misdemeanor and not a wobbler and thus should be “protected” from cooperation. Because of the potential for misapplication, however, you may want to confirm with the jail that they will not honor the notification request. d. currently registering as a California sex or arson offender; e. convicted of a federal crime that meets the definition of an aggravated felony, or is identified by ICE or Homeland Security as the subject of a federal felony arrest warrant. Under no circumstances can local law enforcement cooperate with immigration authorities on individuals arrested, detained, or convicted of offenses that are misdemeanors under the code but were felonies or wobblers before the enactment of Proposition 47. In other words, in no case can local law enforcement cooperate with notice and transfer requests for people convicted of Proposition 47 offenses (Govt C §7282.5(a)(6)). It’s clear that no conviction that is classed as a misdemeanor under Proposition 47 can be the basis for cooperation with immigration. If a person is entitled to reduce a past felony conviction to a misdemeanor under Proposition 47 but has not yet done so, the better view is that the felony still cannot serve as a basis for cooperation with immigration authorities. However, because of the potential for mixed application on the ground, counsel should make every effort to reduce prior felonies to misdemeanors under Proposition 47. If the conviction is from another county, counsel should contact the public defender or other defense counsel in that county to ask them to reduce the felony under Proposition 47. ALERT: Only felony DUI or drug-offense convictions may be the basis for cooperating with notice and transfer requests (see Govt C §7282.5(a)(3)(G), (M)). Example: Client Henry is convicted of misdemeanor Cal. H&S Code § 11358. ICE has issued a notification request on his case. Can the jail notify ICE of Henry’s release date? Answer: No. Per Govt C § 7282.5(a)(3)(M), only felony offenses may be the basis to cooperate with a notification request. However, note that Henry may face other serious consequences to his immigration status as the result of this offense. Also, because ICE may still try to arrest Henry, inform Henry of his right to remain silent in front of ICE agents and to not open his home door to ICE agents (they are required to have judicial warrants and very rarely do). Page 229 of 363 5 Example: Client Tony has a prior conviction for receiving stolen property, Cal. PC §496, from three years ago. In that case, Tony stole a bottle of juice and was convicted of a misdemeanor. In the current case, he’s received a conviction for a misdemeanor DUI, Cal Vel. C §23152. ICE issues a transfer request. Is Tony protected from transfer request? Answer: Yes. The jail cannot respond to ICE’s transfer request. Even though PC §496 is an enumerated offense in §7282.5(a)(3)(F) and Tony’s conviction occurred within the last five years, §496(a) for property valued under $950 was redefined as a misdemeanor offense under Proposition 47, and Tony was convicted of a misdemeanor. Thus he is “safe” under the California Values Act. See Govt C §7282.5(a)(6). Tony’s misdemeanor DUI also may not be the basis for cooperation because only felony DUI convictions may trigger discretion to cooperate. Govt C 7282.5(a)(3)(G). Because of the potential for confusion about the §496 conviction, you may want to confirm with the jail that they will not honor a transfer request. Example: What if Tony had a 2013 felony conviction for possessing a controlled substance, Cal. H&S C § 11377? Answer: First, Tony’s counsel would make every effort to get the conviction reduced to a misdemeanor under Proposition 47. That way the conviction would not permit cooperation. Failing that, counsel would argue that the felony still did not provide discretion to local law enforcement to cooperate because Proposition 47 offenses are protected from notice and transfer requests. C) What is the California Values Act? The California Values Act is the heart of SB 54. It governs what local law enforcement is and is not permitted to do with respect to immigration enforcement. The Values Act is codified in Govt C §§7284-7284.12. 1. What does the California Value Act prohibit? Under the Act, California law enforcement agencies, including school police or security departments, shall not (Govt C §7284.6(a)): Use agency or department money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including to: • Inquire into an individual’s immigration status • Detain an individual pursuant to a hold request • Provide information regarding a person’s release date or respond to requests for notification of release dates, unless either of the following applies: (1) that information is “available to the public,” or (2) the individual comes within an exception to the TRUST Act set out in Govt C §7282.5(a)(1)-(5), (b)) and discussed in part B, above. This would then permit, but not require, the jailor to cooperate unless a more stringent local policy regarding cooperation exists in the jurisdiction. • Transfer an individual to immigration authorities, unless Page 230 of 363 6 (1) this is authorized by a judicial warrant or a judicial probable cause determination, or (2) the person comes within an exception to the TRUST Act set out in Govt C §7282.5(a)(1)-(5), (b)) and discussed in Part B, above. If the person does come within an exception, this would permit, but not require, the jailor to cooperate with the transfer unless a more stringent local policy regarding cooperation exists in the jurisdiction. • Provide personal information (defined in Civ C §1798.3) about an individual, including but not limited to the individual’s home address or work address, unless that information is available to the public. • Make or intentionally participate in arrests based on civil immigration warrants • Assist immigration authorities with “board and searches” of vessels, vehicles or land • Perform the functions of an immigration officer, whether through the 287(g) program or any other law, regulation, or policy, whether formal or informal. • Place peace officers under the supervision of federal agencies or employ peace officers deputized as special federal officers or special federal deputies for purposes of immigration enforcement • Use immigration authorities as interpreters for law enforcement matters relating to individuals in custody • Provide office space within a city or county law enforcement facility exclusively dedicated for immigration authorities’ use • Contract with the federal government to house federal detainees in California law enforcement agency facilities except under Govt C §7310 et seq. 2. What is permissible under the California Values Act? The California Values Act does not prevent any of the following that “does not violate any policy of the law enforcement agency or any local law or policy of the jurisdiction in which the agency is operating:” including (Gov C § 7284.6(b)): • Responding to release date or transfer requests if the information is available to the public or in the exercise of discretion for individuals who come within a TRUST Act exception (see Govt C §7282.5(a)(1)-(5), (b)). Defenders should watch out for law enforcement agencies who try to use this publicly available exception to cooperate with ICE in every case. • Giving immigration authorities access, in compliance with TRUTH Act protections, to interview individuals in agency or department custody. • Responding to requests from immigration officials for information about a specific individual’s criminal history, including prior criminal arrests, convictions, or similar criminal history information accessed through CLETS, where otherwise permitted by state law. • Investigating, enforcing, detaining on reasonable suspicion, or arresting an individual, for the federal offense of reentry into the United States after deportation –if this is detected during unrelated law enforcement activity and the person was previously convicted of a state or federal aggravated felony 9 9 “Aggravated felony” is a term of art in immigration law, defined at 8 U.S.C. § 1101(a)(43). Page 231 of 363 7 (Govt C § 7284.6(b)(1). However, local law enforcement may only respond to a transfer request if the individual comes within an exception in the TRUST Act set out in Govt C §7282.5(a)(1)-(5), (b) and discussed in Part B, above. • Conducting enforcement or investigative duties associated with a joint law enforcement task force, including sharing confidential information with other law enforcement agencies for purposes of task force investigations, as long as (1) the primary purpose is not immigration enforcement; (2) local law enforcement’s duties are primarily related to a violation of state or federal law unrelated to immigration enforcement; and (3) participation in the task force does not violate any local law or policy. (Govt C §7284.6(b)(3). • Making inquiries into information necessary to certify an individual identified as a potential crime or trafficking victim for a T or U visa, or to comply with 18 USC 922(d)(5) (prohibition on providing firearms to anyone illegally or unlawfully in the U.S.). • Prohibiting or limiting a government entity or official from sharing an individual’s immigration status or citizenship information with federal immigration authorities. NOTE: “Government entity” or “official” is not defined within the Values Act, though “California law enforcement agency” is (See Govt C §7284.4 and footnote 1). 3. How does the California Values Act Affect the CDCR? The California Department of Corrections and Rehabilitation (CDCR) is exempt from the prohibitions on cooperation with immigration placed on California law enforcement agencies.10 However, the California Values Act extends provisions of the TRUTH Act (Govt C §7283 et seq.) to the CDCR, if the CDCR chooses to permit interviews between CDCR inmates and immigration authorities, or respond to immigration notice and transfer requests. • In advance of any interview by ICE, individuals must be presented with a written consent form (mandated to be available in many languages), that explains that the interview is voluntary, the purpose of the interview, and the fact that the interview can be declined or conducted only with the individual’s attorney present (Govt C §7284.10(a)(1)). Under the TRUTH Act, this is law in all county jails as well. • The CDCR must provide a copy of any ICE request for a hold, notification or transfer to the individual and tell the individual whether the CDCR intends to comply with the request (Govt C §7284.10(a)(2)). In addition, under the Act, the CDCR is prohibited from: • Restricting access for individuals to in-prison educational or rehabilitative programming or other credit- earning opportunities on the sole basis of citizen or immigration status, including but not limited to, whether the person is in removal proceedings, or subject to a hold, transfer, or notification request or civil immigration warrant (Govt C §7284.10(b)(1)). • Considering citizenship or immigration status including but not limited to, whether the person is in removal proceedings, or subject to a hold, transfer, or notification request or civil immigration warrant, as a factor in determining a person’s custodial status (Govt C §7284.10(b)(2)). 10 In Govt C §7284.4, the statute reads, for purposes of the Act, “ ‘California law enforcement agency’ does not include the Department of Corrections and Rehabilitation.” Page 232 of 363 8 4. Does falling within California Values Act protections guarantee that a noncitizen will avoid immigration custody? Not necessarily. Although the Value Act is extremely comprehensive in that it limits many forms of ICE collaboration, local law enforcement agencies retain discretion to cooperate with ICE on notification and transfer requests under certain circumstances. Furthermore, nothing prevents immigration authorities from learning of a noncitizen’s presence, whereabouts, and criminal proceedings through their own channels. Appendix I., provides a full list of the offenses that can result in discretionary cooperation with notification or transfer requests. These offenses notwithstanding, there are offenses that are protected from notification and transfer requests. Specifically, straight misdemeanors (including drug possession and DUI) and those felony convictions and misdemeanor convictions for wobblers which are not listed in SB 54 at Govt C §7282.5(a)(3)(A)-(AE). 5. Does the California Values Act apply to juvenile adjudications? In some counties, juveniles simply are not reported to ICE as a matter of practice and policy. Defense counsel can advocate for similar policies on the ground that reporting juveniles to ICE violates confidentiality provisions under Welf & I C §§827 and 828, and undermines the policy goals of Welf & I C §202 to provide treatment in the youth’s best interest, and to promote rehabilitation and family reunification. Local law enforcement is free to not report any noncitizen youth. Visit ILRC’s website for a memo discussing these and other legal issues at the intersection of the California juvenile justice system and immigration enforcement. Otherwise, the Act’s baseline prohibition on responding to notification and transfer requests applies to juvenile detainees, because its definition of “law enforcement official” includes juvenile detention facilities. See Cal. Gov’t Code § 7282(d) (“‘Law enforcement official’ means . . . any person or local agency authorized to operate juvenile detention facilities or to maintain custody of individuals in juvenile detention facilities.”). However, some of the Act’s exceptions apply more narrowly to juveniles than adults. In most cases, juveniles are “adjudicated” and not “convicted” under state law, and most of the Act’s exceptions apply only to “convictions,” not “adjudications.”11 Only a small number of juvenile adjudications constitute convictions under California law. Under section 667(d)(3) of the Penal Code, the only juvenile adjudications that are considered convictions are adjudications for offenses that were committed when the juvenile was 16 or older and that are listed in section 707(b) of the Welfare and Institutions Code. The adjudications described in section 667(d)(3) are therefore the only situations in which state and local law enforcement may, under the Act, cooperate with notification and transfer requests based on a juvenile adjudication. A juvenile convicted as an adult is likely to be treated as an adult for California Values Act purposes. Defenders representing noncitizen juveniles should make every effort to keep them out of adult court. 6. Can a local jurisdiction decide to grant more protection than SB 54 affords? Yes. SB 54 does not mandate cooperation with ICE under any circumstance. Moreover, even when SB 54 delineates the types of cooperation which remain lawful, it states that those activities are subject to any “local law or policy.” (Govt C §7284.6(b)). Thus, in jurisdictions that grant stronger protection such as Santa Clara, San Francisco, and others, those policies control. Advocates remain free to push their law enforcement agency to adopt the strongest policy possible. The ILRC is available to support these efforts. 11 See Cal. Welfare & Inst. Code § 602 (establishing juvenile court jurisdiction to “adjudge” a juvenile younger than eighteen years old “to be a ward of the court”); id. §§ 602.3, 603.5(a) (using “adjudicate,” not “convict”). Page 233 of 363 9 III. DEFENDING YOUR CLIENT To summarize, California law enforcement cooperation with immigration holds is off the table; local law enforcement agencies are prohibited from detaining individuals on the basis of an immigration hold, period. Local law enforcement is also prohibited from gathering or sharing information about suspected noncitizens for immigration officials. Neither can they can act as immigration agents, use immigration agents as translators or dedicate office or desk space in county law enforcement facilities solely for immigration’s use. There are some exceptions where law enforcement officials may exercise discretion to respond to immigration requests for (a) notification of release dates or (b) assistance with transfers, but only for individuals who meet specific criteria in amended Govt C §7282.5. Information concerning an individual’s release date can also be shared when that information is available to the public, and transfer requests can be honored when there is a judicial warrant or judicial determination of probable cause. It is important to distinguish between the prohibition on cooperation with immigration enforcement and the immigration consequences of criminal cases. The California Values Act (and local policy) may prevent local jails from responding to notification and transfer requests, but it does not protect against the immigration consequences of criminal conduct or conviction. In other words, qualifying for protection under the Values Act may delay or avoid ICE arrest, but it does not confer any lawful immigration status on a person. “Immigration consequences” refers to how a criminal disposition will affect the noncitizen’s immigration status, e.g., whether it will cause him or her to lose a green card, or prevent eligibility to apply for lawful status in the future. Defense counsel continues to have a duty to investigate and affirmatively defend against the immigration consequences of a criminal case, in accordance with the priorities of the defendant, in addition to the duty to defend the criminal case, itself. The ILRC has a number of useful resources available online for analyzing the immigration consequences of criminal conduct and/or conviction as well as attorneys to help answer questions. See www.ilrc.org/crimes and www.ilrc.org/chart. Defense attorneys can play a critical role in keeping their clients out of ICE’s purview by holding local law enforcement accountable to the provisions of the California Values Act, securing their clients’ release from custody, and resolving cases in such a way as to best preserve their client’s immigration options. A) Effect on Defense Goals and Strategy It’s important to understand SB 54 and be familiar with it in order to inform clients and their families of their rights, to speak up if the court and/or sheriff is in violation of the law, to gather information regarding law enforcement practices in violation of the law in order to lay the ground work for civil action, or to weigh the opportunities and risks of O.R. release or bail possibilities. Beyond these considerations, SB 54 may be a factor in determining the best resolution for a specific client. And the determination is not always simple. In many cases the client’s first priority will be to protect his or her lawful immigration status-or hope of gaining lawful status – even if a conviction will bring the client within a TRUST Act exception and effectively destroy SB 54 protection. In other cases, where a client is undocumented and without any hope of relief, he or she may most want to avoid immigration authorities and prioritize getting a disposition that preserves protection under SB 54, even if it has a bad effect on his or her future immigration options. Sometimes the resolution of a case will meet both goals, sometimes it will not. This may add another layer of complexity on what is already a complex decision. When in doubt, conferring with an expert in “crim/imm” may be the safest and most time saving option. Consider the following in incorporating the California Values Act into your immigration case assessment. Page 234 of 363 10 B) Approaching your case: 1. Generally, keep your eye on the immigration priorities of your client. Do not settle the case for an SB 54 “safe” disposition that in the long run will harm clients by rendering them deportable, inadmissible, or ineligible for relief and subject to mandatory immigration detention. For example, misdemeanor possession of narcotics may be SB 54 safe, but is very destructive to your client’s immigration options and ability to remain out of ICE custody. (The exception may be if after consulting with an immigration expert, you determine that the client has no possible path to lawful status, and their biggest goal is to avoid ICE now.) a. Review ILRC criminal immigration materials online (e.g., Immigrant Questionnaire, California Chart & Notes, Relief toolkit) and consult with an expert in immigration and crimes (“crim/imm”) about possible dispositions of the case. See www.ilrc.org/chart and www.lirc.org/crimes. 2. Learn the exceptions permitting cooperation with notice and transfer requests. If local law enforcement indicates it will honor a notification or transfer request, discuss the posting of bail with your client. a. Note: Your client should receive notice after ICE submits such a request and you and your client should receive written notice if law enforcement intends to comply with the request. b. Remember that an assessment of whether your client is protected by the California Values Act requires a review of the current charges and your client’s prior criminal history (keep in mind washout periods). See Appendix I for a list of offenses permitting cooperation with notification and transfer requests. c. The exceptions to noncooperation with immigration are many and complex, and a Sheriff’s office or deputy could make a mistake. It is advisable to confirm with the Sheriff that he or she will not cooperate with a notification or transfer request that is protected under the Act. 3. Learn about any local policy further restricting law enforcement’s cooperation with immigration. a. A growing list of counties including San Francisco, Santa Clara, and Monterey County are adopting stronger policies than the Values Act. For an interactive map showing local policies, go to www.ilrc.org/local-enforcement-map 4. Discuss your client’s rights. This will be helpful in the event that your client or his or her friends and family are confronted by ICE. a. In particular, advise on the Fifth Amendment right to remain silent in front of ICE officials, the Fourth Amendment right against search and seizure if ICE agents come to a person’s home without a judicial warrant (they virtually never have a judicial warrant, only an administrative one), and other rights. See Know Your Rights: A Guide for Immigrants in the California Criminal Justice System, at www.ilrc.org/enforcement . Some defender offices distribute “red cards” (cards that assert these rights), to help the client assert their rights if it becomes necessary. To order red cards in bulk, https://www.ilrc.org/red-cards. C) Bail Considerations Since ICE holds are prohibited in every case, notification and transfers are now the primary way that individuals are arrested by ICE at local jails. While the existence of a notification or transfer request shouldn’t affect the granting of bail by the judge, advising the client on whether to post bail may depend on whether or not the client will be protected from notification or transfer under the California Values Act or otherwise remain free from ICE custody. In other words, if a client is likely to be turned over to ICE, it may not be advisable to pay the bail since ICE may arrest the client and not transfer the individual back to criminal custody to resolve the criminal case. The money a client might spend on bail may be better spent on an immigration attorney or immigration Page 235 of 363 11 bond. Conversely, if the person is protected by the California Values Act, or a more stringent local policy, it may be advisable to pay the bail. To that end, it is important to familiarize yourself with the exceptions to notification and transfer requests, remembering that prior criminal history is considered as well (keep in mind washout periods) and to learn the local practices (i.e., the frequency with which ICE comes to the jail to pick up noncitizens or the likelihood of ICE showing up at someone’s home). In many cases, it is preferable to remain in criminal custody at the jail than to be taken into immigration custody in the middle of a court case. Example: Client John’s family would like to post his bail. John has a misdemeanor child endangerment Cal PC §273a(a) conviction from four years ago. He is currently in custody for a misdemeanor Cal. PC §273a(b) charge. ICE has issued a notification request in John’s case. Should John’s family post his bail? Answer: John should consider the risks before his family posts bail. The current charge for §273a(b) is not a basis for cooperation. At this point it is only a charge, not a conviction.12 However, the prior misdemeanor conviction for Cal PC §273a(a), is a wobbler offense listed in § 7282.5(a)(3)(C). Here, unless the local jail has its own policy which is stronger than the Act, the jail may notify ICE of John’s release date. John should be notified of this risk and any other local trends (e.g. the frequency to which ICE agents come to jail to pick people up), before his family posts bail. To avoid notification and transfer request problems, criminal defense counsel should try to get the client released from criminal custody on his or her own recognizance or bail before immigration enforcement agents have a chance to identify and locate the client (by using their own resources, public information, or an exception to the prohibition on cooperation by local law enforcement). This will not be possible in all cases as ICE will identify certain individuals shortly after they are booked into criminal custody. How do I know that my client has a notification or transfer request? Under the TRUTH Act, upon receiving a notification or transfer request, law enforcement is required to provide a copy of the notice to the individual. Further, if law enforcement does notify ICE of the person’s release date, law enforcement must promptly provide notification in writing to the individual and their attorney or to one other person the client designates.13 Defenders, however, have reported receiving delayed notice. Consider reaching out to your Sheriff’s Department to establish a streamlined process for this state-mandated notice. NOTE: Given the complexities of the criminal exceptions to noncooperation with ICE, it is advisable to confirm that the Sheriff will not cooperate with a notification or transfer request that is protected under the Act. In particular, straight misdemeanors, Proposition 47 offenses, and felony convictions and misdemeanor convictions for wobblers that are not enumerated in Govt C §7282.5 are protected against cooperation by law enforcement with notice and transfer requests from immigration agencies. D) Proposition 47 considerations In no case are Proposition 47 offenses subject to notice or transfer requests. The ILRC’s interpretation is that all Prop 47 offenses should be protected, including those felonies that are eligible to be reduced or reclassified, but have not yet been. However, defenders should be prepared for mixed application on the ground. To put your client in the best position, reduce felonies to misdemeanors (through a number of vehicles; see free online materials 14 ). This is useful not only in ensuring that your client is not incorrectly transferred to ICE, but also in avoiding certain immigration consequences that can arise with an actual or potential sentence of a year of more.15 12 A misdemeanor charge of any sort may never be the basis for ICE cooperation. See Govt C §7282.5(b). 13 Govt C § 7283.1(b). 14 See materials at www.ilrc.org/post-conviction-relief. 15 See, e.g., California Criminal Sentences and Eligibility for Relief, available at www.ilrc.org/crimes. Page 236 of 363 12 E) Proposition 64 Considerations Misdemeanor Proposition 64 offenses, including drug trafficking, should receive protection against notification and transfer under the Act because they are “straight” misdemeanors. Only felony drug convictions are exceptions in the Act. Govt C § 7282.5(a)(3)(M).16 Advocates are arguing that protection should extend as well to those felony convictions that have yet to be reduced or reclassified under Proposition 64. However, defense counsel should be aware that controlled substance offenses- whether misdemeanor or felony -- are very damaging to noncitizens. Even admitting to drug-related conduct that does not result in a criminal conviction after successful completion of a drug program, or pleading guilty to a drug related offense where the plea is later withdrawn and the criminal case dismissed is considered a conviction for immigration purposes. This is true even for even minor offenses involving marijuana (even if legal under state law), with the exception of a first conviction for possession of 28.5 grams or less. Drug offenses can render a noncitizen inadmissible, deportable, ineligible for relief, and subject to mandatory immigration detention. In other words, while a misdemeanor drug trafficking offense may result in protection from cooperation with notice and transfer requests and thus delay or avoid ICE apprehension, it will nearly always prove fatal for immigration status. NOTE: Beginning January 1, 2018, California deferred entry of judgment (DEJ) is ended and is replaced by a true pretrial diversion program. See AB 208 (Eggman), amending Pen C §1000. In contrast to DEJ, pretrial diversion does not require a guilty plea before the case is diverted and so is not a “conviction” for immigration purposes. If your noncitizen client is capable of successfully completing a diversion program and 12-18 months of monitoring, pretrial diversion is an excellent option. If your client is deeply addicted or otherwise not capable, you must look for another option, because failure at diversion will almost surely result in a damaging drug conviction. To eliminate a DEJ “conviction” for immigration purposes for pleas entered prior to January 1, 2018, the person must have the charges dismissed under Penal C §1000.3 and further must withdraw the plea under Pen C § 1203.43. Although § 1203.43 is a vacatur for cause, procedurally it is very easy to obtain, similar to an expungement under Pen C § 1203.4. See discussion in Practice Advisory: New California Pretrial Diversion at www.ilrc.org/crimes. F) Remedies A sample letter is available to act in advance of potential violations titled “Letter to Local Law Enforcement Identifying Potential Violations of SB 54,” available under the Implementation Resources subheading at www.iceoutofca.org/ca-values-act-sb54.html. If a violation of SB 54 has occurred, there are several steps that a defender can take. First, a violation should be reported to the legal organizations who helped draft and pass SB 54. These organizations are tracking violations trend and have escalation plans in place. A violation may be reported via the ILRC.17 Violations may also be reported to the State Attorney General’s office. If the violation resulted in extra detention in criminal custody, this may additionally be the basis for a civil lawsuit. 16 Section 7282.5(a)(3)(M) of the Act creates an exception for “[a]n offense involving the felony possession, sale, distribution, manufacture, or trafficking of controlled substances.” The word “felony” modifies the entire clause. Accordingly, only convictions for felony possession, felony sale, felony distribution, felony manufacture, or felony trafficking of controlled substances are included. 17 Please e-mail Grisel Ruiz at gruiz@ilrc.org with potential violations. Page 237 of 363 13 APPENDIX I. Enumerated Offenses Permitting Limited Cooperation (TRUST Act; Govt C §7282.5) The Values Act permits discretionary cooperation with immigration officials (for notification and transfer requests) when this cooperation would not be in violation of any federal, state, local law, local policy or the California Values Act. The Values Act allows cooperation for individuals convicted or held to answer for serious, violent or state prison offenses. Additionally, the Act allows cooperation for certain enumerated wobbler offenses found at Govt C § 7282.5(a)(3)(A)-(Q). Here, the Act allows cooperation for those convicted within 5 years of an enumerated misdemeanor or convicted within the last 15 years of an enumerated felony. Note that for these enumerated offenses, being held to answer will not suffice and washout periods apply. NOTE: Watch out for potential misapplication! For an offense triggering the below issues, it may be particularly important to confirm that the Sheriff is accurately following the law and will not honor a notification or transfer request. Straight Misdemeanors: Many offense statutes listed in Govt C §7282.5(a)(3) contain subsections describing straight misdemeanor offenses. The TRUST Act 18 is clear however, that for an exception to apply to misdemeanors, the individual must have been convicted “for a crime that is punishable as either a misdemeanor or a felony”—in other words, the charged offense must have been a wobbler resolved as a misdemeanor. Straight misdemeanors are SB 54 “safe” in that they do not permit responses to notice or transfer requests. See APPENDIX III. Proposition 47 Offenses: Proposition 47 offenses are expressly protected from notice and transfer requests.19 However, law enforcement agencies on the ground might incorrectly respond to notice and transfer requests since certain Prop 47 offenses are listed in the enumerated offenses at Govt C §7282.5(a)(3). See APPENDIX II. The enumerated offenses are: Crimes Against a Person, Criminal Threats & Sex Offenses Assault (G.C. § 7282.5(a)(3)(A)) As specified, but not limited to, P.C. §§ 217.1, 220, 240, 241.1, 241.4, 241.7, 244, 244.5, 245, 245.2, 245.3, 245.5, 4500, and 4501. Battery (G.C. § 7282.5(a)(3)(B)). As specified, but not limited to P.C. §§ 242, 243.1, 243.3, 243.4, 243.6, 243.7, 243.9, 273.5, 347, 4501.1, & 4501.5. Use of threats (G.C. § 7282.5(a)(3)(C)). As specified, but not limited to P.C. §§ 71, 76, 139, 140, 422, 601, and 11418.5. Sexual abuse, sexual exploitation, or crimes endangering children (G.C. § 7282.5(a)(3)(D)). As specified in, but not limited to, P.C. §§ 266, 266a, 266b, 266c, 266d, 266f, 266g, 266h, 266i, 266j, 267, 269, 288, 288.5, 311.1, 311.3, 311.4, 311.10, 311.11, and 647.6. Child abuse or endangerment (G.C. § 7282.5(a)(3)(C)). As specified in, but not limited to, P.C. §§ 270, 271, 271a, 273a, 273ab, 273d, 273.4, and 278. Crime resulting in death, or involving the personal infliction of great bodily injury (G.C. § 7282.5(a)(3)(Q)). As specified in, but not limited to, P.C. §§ 245.6(d), 187, 191.5, 192, 192.5, 12022.7, 12022.8, and 12022.9. False imprisonment, slavery, and human trafficking (G.C. § 7282.5(a)(3)(T)). As specified in, but not limited to, P.C. §§ 181, 210.5, 236, 236.1, and 4503. Offense requiring sex offender registration under P.C. §§ 290, 290.002, or 290.006 (G.C. § 7282.5(a)(3)(S)). 18 Govt C §7282.5. 19 Gov’t Code § 7282.5(a)(6). Page 238 of 363 14 Torture and mayhem (G.C. § 7282.5(a)(3)(V)). As specified in, but not limited to, P.C. § 203. Elder and dependent adult abuse (G.C. § 7282.5(a)(3)(X)). As specified in, but not limited to, P.C. § 368. Hate crime (G.C. § 7282.5(a)(3)(Y)). As specified in, but not limited to, P.C. § 422.55. Crime threatening the public safety (G.C. § 7282.5(a)(3)(W)). As specified in, but not limited to, P.C. §§ 219, 219.1, 219.2, 247.5, 404, 404.6, 405a, 451, and 11413. Stalking (G.C. § 7282.5(a)(3)(Z)). As specified in, but not limited to, P.C. § 646.9. Rape, sodomy, oral copulation, or sexual penetration (G.C. § 7282.5(a)(3)(AC)). As specified in, but not limited to, P.C. §§ 261(a)(2) & (6), 262(a)(1)&(4), 264.1, 286(c)&(d), 288a(c)&(d), 289(a)&(j). Kidnapping (G.C. § 7282.5(a)(3)(AD)). As specified in, but not limited to, P.C. §§ 207, 209, and 209.5. Crimes Against Property Burglary, robbery, theft, fraud, forgery, or embezzlement (G.C. § 7282.5(a)(3)(F)). As specified in, but not limited to, P.C. §§ 211, 215, 459, 463, 470, 476, 487, 496, 503, 518, 530.5, 532, and 550. Vandalism with prior convictions (G.C. § 7282.5(a)(3)(N)). As specified in, but not limited to, P.C. § 594.7. A crime threatening the public safety (G.C. § 7282.5(a)(3)(W)). As specified in, but not limited to, P.C. §§ 219, 219.1, 219.2, 247.5, 404, 404.6, 405a, 451, and 11413. Crimes Against Public Justice Obstruction of justice (G.C. § 7282.5(a)(3)(H)). As specified in, but not limited to, P.C. §§ 69, 95, 95.1, 136.1, and 148.10. Bribery (G.C. § 7282.5(a)(3)(I)). As specified in, but not limited to, P.C. §§ 67, 67.5, 68, 74, 85, 86, 92, 93, 137, 138, and 165. Escape, (G.C. § 7282.5(a)(3)(J)). As specified in, but not limited to, P.C. §§ 107, 109, 110, 4530, 4530.5, 4532, 4533, 4534, 4535, and 4536. Firearms and other weapons Unlawful possession or use of a weapon, firearm, explosive device, or weapon of mass destruction. (G.C. § 7282.5(a)(3)(K)) As specified in, but not limited to, P.C. §§ 171b, 171c, 171d, 246, 246.3, 247, 417, 417.3, 417.6, 417.8, 4574, 11418, 11418.1, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.55, 18745, 18750, 18755, and 26100 (c) and (d). Possession of an unlawful deadly weapon under Part 6 of the Penal Code (P.C. § 16000 et seq.) (G.C. § 7282.5(a)(3)(L)). Possession or use of a firearm in the commission of an offense (G.C. § 7282.5(a)(3)(R)). Felony Drug Offenses Offense involving the felony possession, sale, distribution, manufacture, or trafficking of controlled substances (G.C. § 7282.5(a)(3)(M)). Felony DUI of alcohol or drugs (G.C. § 7282.5(a)(3)(G)). Gang-related Offenses Gang-related offenses (G.C. § 7282.5(a)(3)(O)). As specified in, but not limited to, P.C. §§ 186.22, 186.26, and 186.28. Inchoate Offenses An attempt or a conspiracy as defined in P.C. §§ 664 or 182 to commit any of the enumerated offenses on this list (G.C. § 7282.5(a)(3)(P)). Soliciting the commission of a crime (G.C. § 7282.5(a)(3)(AA)) Page 239 of 363 15 As specified in, but not limited to, P.C. §§ 286(c), 653j, and 653.23. Criminal Profiteering Criminal profiteering and money laundering (G.C. § 7282.5(a)(3)(U)) As specified in, but not limited to, P.C. §§ 186.2, 186.9, and 186.10. Offense Committed while Out on Bail Offense committed while on bail or released on O.R. (G.C. § 7282.5(a)(3)(AB)) As specified in, but not limited to, P.C. § 12022.1. Vehicle Code Vehicle Code § 20001(c). (G.C. § 7282.5(a)(3)(AE)) Felony DUI of alcohol or drugs (G.C. § 7282.5(a)(3)(G)) Page 240 of 363 16 APPENDIX II. Enumerated Offenses in Govt C §7282.5 that were Reduced by Propositions and No Longer Permit Cooperation with Immigration NOTE: Government Code §7282.5, names broad offense categories such as “assault”, “battery”, “theft”, “burglary”) followed by the language, “as specified in, but not limited to sections…” and then lists offense statutes. A couple of the offenses in the chart below are not explicitly enumerated offenses listed in Govt C §7282.5, but nonetheless fall within a broadly named category in the statute. They are provided here as Proposition 47 misdemeanors that expressly protect individuals from notice and transfer requests (see Govt C §7282.5(a)(6)). Note that other offenses (e.g., 459, 487) are listed in Govt C §7282.5(a)(3) and thus a conviction is exempted from the ban on noncooperation with immigration officials (in other words law enforcement may choose to cooperate with notice and transfer requests) despite the fact that the underlying conduct may have been akin to misdemeanor shoplifting before Proposition 47 was codified. While it is our interpretation that all Prop 47 offenses should be protected (see P.C. §1170.18), including felonies which have yet to be reduced or reclassified, defenders should be prepared for mixed application on the ground. To put your client in the best position, reduce felonies to misdemeanors where ever you can. Offense Code Trust Act (Govt C §7282.5) Category Proposition Shoplifting under 950$ Pen C §459.5 (a)(3)(F) Prop 47 Forgery for < $950 Pen C §473(b) (a)(3)(F) Prop 47 Insufficient Funds where underlying amount is < $950 Pen C §476a(b) (a)(3)(F) Prop 47 Receiving stolen property of < $950 value Pen C §496(a) (a)(3)(F) Prop 47 WARNING: Proposition 47 and Proposition 64 reduced some felony drug offenses to misdemeanors (see Health & S C §§11350, 11358, 11359(c), 11377) and misdemeanor drug offenses are “safe” from cooperation with notice and transfer requests. The exceptions that permit cooperation are only for “felony possession, sale, distribution, manufacture or trafficking” and felony DUI drugs/alcohol. See Govt C §§7282.5(a)(3)(M), (G). Although a misdemeanor drug offense may afford some protection against notice and transfer requests, drug-related conduct and convictions are very damaging to noncitizens and result in deportation, inadmissibility and the denial of relief. Page 241 of 363 17 APPENDIX III. Enumerated Offenses Describing Straight Misdemeanors Instead of Felonies or Wobblers as Required by Govt C §7282.5 in order to Cooperate with Immigration NOTE: As straight misdemeanors, these offenses do not fall within the exception to noncooperation with immigration as misdemeanor convictions as “a crime punishable as either a misdemeanor or a felony” (wobbler). In other words, these convictions should not trigger discretion to cooperate with notice and transfer requests. Offense Penal Code TRUST Act (Govt C §7282.5) subsection Assault §240 (a)(3)(A) Battery §242 (a)(3)(B) Annoying or molesting a child §647.6(a)(1)-(2) (a)(3)(D) Child endangerment §273a(b) (a)(3)(E) Petty theft during an emergency §463(c) (a)(3)(F) Accepting bribe for appointment to public office §74 (a)(3)(I) Brandishing deadly weapon §§417(a), (d) (a)(3)(K) Knowingly permitting another to carry a firearm in a vehicle §26100(a) (a)(3)(K) Incitement to riot §404.6 (a)(3)(W) Elder abuse §368(c) (a)(3)(X) Supervising or aiding prostitution-related offense §653.23 (a)(3)(AA) Page 242 of 363 18 APPENDIX IV. Criminal Defender “Cheat Sheet” on the California Values Act The Act in a Nutshell:  Law enforcement agencies (LEA) cannot honor any immigration “hold” requests, meaning requests to detain a person for additional time beyond the end of criminal custody.  LEA cannot respond to immigration requests for notification of release dates 20 or facilitation of transfer to immigration custody 21 -- unless a TRUST Act exception applies (see Chart, below).  TRUTH Act protections, which require LEA to obtain written consent from a person in custody before an ICE interview, have been extended to the CDCR.  LEA cannot inquire into a person’s immigration status.  LEA cannot share personal information (e.g., work or home addresses) about a person with immigration authorities -- unless the information is publicly available.  LEA cannot use immigration agents as translators.  LEA cannot perform the functions of an immigration officer (whether through a § 287(g) agreement or otherwise). LEA cannot make arrests on civil immigration warrants.  In most cases, LEA are prohibited from arresting people for the federal criminal offense of unlawful reentry under 8 U.S.C. § 1326(a).22  LEA cannot provide immigration agents with exclusive office space. How Do I Defend Noncitizens in Light of the California Values Act? 1. In most cases, the highest immigration priority for the client still is getting or keeping lawful immigration status, rather than avoiding a TRUST Act exception. The Values Act provides a specific list of offenses that are “TRUST Act exceptions,” which permit an LEA to provide release-date notification or transfer assistance to immigration authorities. See Chart, below. For many immigrant defendants, however, avoiding this list is not their top defense priority. Their priority is to preserve or obtain lawful immigration status. A plea that can both support lawful immigration status and avoid triggering a TRUST Act exception is optimal, but if a choice must be made, it often should be to save immigration status. An exception to this rule may be if the defendant is undocumented, has no immediate hope of immigration relief, and would suffer severe consequences if taken by ICE. Remember that both the TRUST Act and the regular immigration analyses require considering all prior convictions as well as current charges. 2. Learn the TRUST Act exceptions and help clients get protection. If your client has a notification or transfer request but does not come within a TRUST Act exception, you may want to make sure that the jail understands the law and will not cooperate with ICE. If the client comes within an exception and is likely to be transferred to ICE, discuss with your client the option of not posting bail, so that he or she will remain in criminal, rather than immigration, detention. Your client should receive notice after ICE submits a notice or transfer request, and you and your client should receive written notice if law enforcement intends to comply with the request. 20 A notification request is a voluntary request from ICE to a law enforcement agency asking for the individual’s release date such that ICE has sufficient notice to arrest the individual at release from criminal custody. These requests are made using the DHS Form I-247A. 21 A transfer request is a request from immigration authorities asking that a law enforcement agency facilitate the transfer of an individual in its custody to ICE or CBP. 22 These arrests may only occur if reentry is detected during an unrelated law enforcement activity and the person was previously convicted of an aggravated felony, defined at 8 U.S.C. § 1101(a)(43). Page 243 of 363 19 3. Learn about any local policy limiting law enforcement’s cooperation with immigration. A growing list of counties, including San Francisco, Santa Clara, and Monterey County, are adopting stronger policies than the Values Act. 4. Advise your client on his or her Fifth Amendment right to remain silent in front of ICE officials, the Fourth Amendment right against search and seizure if ICE agents come to a person’s home without a judicial warrant (and ICE virtually never has a judicial warrant).23 CHART: TRUST Act Exceptions That Destroy Some Protections If a defendant comes within a TRUST Act exception, then LEA potentially have the discretion to cooperate with ICE in two, and only two, ways: they can choose to answer requests for notification and for assistance with transfer. LEA have discretion (but are never required) to cooperate with these requests only when 1) doing so will not violate any Federal, State, or local law or policy and 2) when permitted by the California Values Act.24 Conviction triggers TRUST Act exception Held to answer will suffice?25 Other conditions Serious (Pen C §1192.7(c)) or violent (Pen C §667.7(c)) Felony Yes Felony punishable by state prison Yes Other felonies enumerated in Act 26 No Only includes convictions within the last 15 years Misdemeanor convictions for wobblers enumerated in the Act 27 No Only includes convictions within the last 5 years Federal offense that is an “aggravated felony” No See definition at 8 USC §1101(a)(43) Currently required to register as a sex or arson offender N/A No conviction, but federal felony arrest warrant. 28 N/A ICE or Homeland Security identifies the person as subject to such a warrant. NOTE:  Only felony drug convictions or DUIs are a basis for cooperation with notice and transfer requests; misdemeanor convictions are protected.  Proposition 47 offenses should be protected from cooperation with notice and transfer requests. See the discussion in Defending Your Client, Section D) Proposition 47 considerations in Practice Advisory SB 54 and the California Values Act: A Guide for Criminal Defenders (February 2018).  Only enumerated wobbler offenses that resolved for misdemeanors can trigger an exception to protection under SB 54. Some of the offenses enumerated are straight misdemeanors. This is a drafting error from the 2015 TRUST Act. 23 See Know Your Rights: A Guide for Immigrants in the California Criminal Justice System, at www.ilrc.org/enforcement 24 (Govt C §7282.5(a)(1)-(5), (b)): 25 This requires a probable cause determination per Govt C § 872. 26 Govt C §7282.5(a)(3)(A)-(Q). 27 Govt C §7282.5(a)(3)(A)-(Q). 28 Govt C §7282.5(a)(5) Page 244 of 363 PUBLIC PROTECTION COMMITTEE 5. Meeting Date:11/05/2018   Subject:REVIEW OF BANNING GUN SHOWS AT THE COUNTY FAIRGROUNDS Submitted For: PUBLIC PROTECTION COMMITTEE,  Department:County Administrator Referral No.: N/A   Referral Name: REVIEW OF BANNING GUN SHOWS AT THE COUNTY FAIRGROUNDS  Presenter: Paul Reyes, 925-335-1096 Contact: Paul Reyes, 925-335-1096 Referral History: On October 9, 2018, the Board of Supervisors referred to the Public Protection Committee the topic of banning gun shows at the Contra Costa County Fairgrounds and a review of regulations governing the purchase and sale of guns at gun shows. A copy of the Board's referral is attached.  Correction   The Board referral incorrectly stated that Senate Bill 221 was signed into law by the Governor. Although Senate Bill 221 passed the legislature, the bill was actually vetoed by the Governor on September 28, 2018. A copy of the Governor's Veto Message is attached.  Referral Update: Today's action is an introductory discussion of the referral to solicit information from stakeholders and direct staff as to next steps. Recommendation(s)/Next Step(s): 1. INTRODUCE referral on banning gun shows at the Contra Costa County Fairgrounds and review of regulations governing the purchase and sale of guns at gun shows; and 2. PROVIDE direction to staff on next steps. Attachments BOS Referral Governor's Veto Message Page 245 of 363 RECOMMENDATION(S): REFER the issue of banning gun shows at the Contra Costa County Fairgrounds and a review of regulations governing the purchase and sale of guns at gun shows to the Public Protection Committee. FISCAL IMPACT: No fiscal impact. BACKGROUND: The Contra Costa County Fairgrounds are owned and operated by the 23rd District Agricultural Association. The 23rd District is a “state institution” under section 3953 of the Food and Agricultural Code. Because the Fairgrounds are owned and operated by a state institution, the County is not authorized to prohibit gun shows held on state property. A few other counties have banned gun shows at county fairgrounds, but these bans have been at fairgrounds owned by counties themselves, rather than by the state. There was local interest in eliminating gun shows at the Cow Palace (which occurred 5 times annually according to media reports). The Cow Palace is owned by Agricultural APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 10/09/2018 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Candace Andersen, District II Supervisor Diane Burgis, District III Supervisor Karen Mitchoff, District IV Supervisor Federal D. Glover, District V Supervisor Contact: Supervisor Federal D. Glover, (925) 608-4200 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: October 9, 2018 , County Administrator and Clerk of the Board of Supervisors By: June McHuen, Deputy cc: C. 79 To:Board of Supervisors From:Federal D. Glover, District V Supervisor Date:October 9, 2018 Contra Costa County Subject:REFERRAL TO PUBLIC PROTECTION COMMITTEE TO REVIEW BANNING GUN SHOWS AT THE COUNTY FAIRGROUNDS Page 246 of 363 District 1-A, also a state institution. That effort resulted in the need for special legislation to be carried Page 247 of 363 BACKGROUND: (CONT'D) by Senator Scott Weiner and Assemblymember Phil Ting to disallow gun shows on the Cow Palace property. The bill was signed into law by the Governor earlier this month. Attached is a copy of the bill (SB 221). This referral to the Public Protection Committee will assist with facilitating a public discussion as to whether or not Contra Costa should similarly pursue an effort to disallow gun shows at the state-owned County Fairgrounds property, which happens to be located directly across the street from Antioch High School and is in the vicinity of several other school and a Headstart facility (see attached map). This referral also seeks to determine whether facilitating gun shows on public property is an appropriate message to be sending as the nation continues to grapple with mass shootings, which seem to have become more commonplace in our society. Specifically, rules and regulations governing the purchase and sale of guns at these shows are different than those governing similar transactions at brick and mortar gun dealer storefronts. CONSEQUENCE OF NEGATIVE ACTION: The referral will not be made to the Public Protection Committee. ATTACHMENTS Map of Fairgrounds Property Page 248 of 363 Page 249 of 363 Page 250 of 363 PUBLIC PROTECTION COMMITTEE 6. Meeting Date:11/05/2018   Subject:APPOINTMENTS TO THE CY2019 COMMUNITY CORRECTIONS PARTNERSHIP & EXECUTIVE COMMITTEE Department:County Administrator Referral No.: N/A   Referral Name: APPOINTMENTS TO THE CY2019 COMMUNITY CORRECTIONS PARTNERSHIP & EXECUTIVE COMMITTEE  Presenter: Paul Reyes, (925)335-1096 Contact: Paul Reyes, (925)335-1096 Referral History: The California Legislature passed Assembly Bill 109 (Chapter 15, Statutes of 2011), which transferred responsibility for supervising certain lower-level inmates and parolees from the California Department of Corrections and Rehabilitation (CDCR) to counties. Assembly Bill 109 (AB109) took effect on October 1, 2011 and realigned three major areas of the criminal justice system. On a prospective basis, the legislation: • Transferred the location of incarceration for lower-level offenders (specified nonviolent, non-serious, non-sex offenders) from state prison to local county jail and provides for an expanded role for post-release supervision for these offenders; • Transferred responsibility for post-release supervision of lower-level offenders (those released from prison after having served a sentence for a non-violent, non-serious, and non-sex offense) from the state to the county level by creating a new category of supervision called Post-Release Community Supervision (PRCS); • Transferred the custody responsibility for parole and PRCS revocations to local jail, administered by county sheriffs AB109 also created an Executive Committee of the local Community Corrections Partnership (CCP) and tasked it with recommending a Realignment Plan (Plan) to the county Board of Supervisors for implementation of the criminal justice realignment. The Community Corrections Partnership is identified in statute as the following: Community Corrections Partnership  Chief Probation Officer (Chair)1. Presiding Judge (or designee)2. County supervisor, CAO, or a designee of the BOS3. District Attorney4. Page 251 of 363 Public Defender5. Sheriff6. Chief of Police7. Head of the County department of social services8. Head of the County department of mental health9. Head of the County department of employment10. Head of the County alcohol and substance abuse programs11. Head of the County Office of Education12. CBO representative with experience in rehabilitative services for criminal offenders13. Victims’ representative14. Later in 2011, the Governor signed Assembly Bill 117 (Chapter 39, Statutes of 2011), which served as “clean up” legislation to AB109. Assembly Bill 117 (AB117) changed, among other things, the composition of the local CCP-Executive Committee. The CCP-Executive Committee is currently identified in statute as the following: Community Corrections Partnership-Executive Committee  Chief Probation Officer (Chair)1. Presiding Judge (or designee)2. District Attorney3. Public Defender4. Sheriff5. A Chief of Police6. The head of either the County department of social services, mental health, or alcohol and drug services (as designated by the board of supervisors) 7. Although AB109 and AB117 collectively place the majority of initial planning activities for Realignment on the local CCP, it is important to note that neither piece of legislation cedes powers vested in a county Board of Supervisors’ oversight of and purview over how AB109 funding is spent. Once the Plan is adopted, the Board of Supervisors may choose to implement that Plan in any manner it may wish.  Referral Update: Each year, the Public Protection Committe reviews the membership of the Community Corrections Partnership and makes recommendations for appointment to non ex-officio seats to the Board of Supervisors. The Board has made these appointments on a calendar year basis. Today's action is seeking direction from the Public Protection Committee to either: 1. Forward nominees to the Board of Supervisors following a determination and vote of the Committee today, or 2. Direct staff to conduct a recruitment process for all or a portion of the Board appointment members of the CCP and CCP Executive Committee. Recommendation(s)/Next Step(s): 1. RECOMMEND nominees for appointment to seats on the CY2019 Community Corrections Page 252 of 363 1. RECOMMEND nominees for appointment to seats on the CY2019 Community Corrections Partnership & Executive Committee (see attachments); 2. PROVIDE direction to staff on an alternative recruitment process for membership on the CCP and the CCP Executive Committee Fiscal Impact (if any): No fiscal impact. Attachments CY2018 CCP Membership CY2018 CCP Executive Committee Membership CSAC Informational Letter Page 253 of 363 EXHIBIT A - 2018 COMMUNITY CORRECTIONS PARTNERSHIP Seat Appointee Term Expiration Chief Probation Officer (Chair) Todd Billeci ex-officio Presiding Judge (or designee)Jim Paulsen (designee of Presiding Judge)ex-officio County supervisor, CAO, or a designee of the BOS David J. Twa, County Administrator December 31, 2018 District Attorney Diana Becton ex-officio Public Defender Robin Lipetzky ex-officio Sheriff David O. Livingston ex-officio Chief of Police Guy Swanger, City of Concord December 31, 2018 Head of the County department of social services Kathy Gallagher, Employment and Human Services Director ex-officio Head of the County department of mental health Matthew White, Acting Director of Behavioral Health Services ex-officio Head of the County department of employment Donna Van Wert, Executive Director-Workforce Development Board ex-officio Head of the County alcohol and substance abuse programs Fatima Matal Sol, Director of Alcohol and Other Drugs ex-officio Head of the County Office of Education Karen Sakata, County Superintendent of Schools ex-officio CBO representative with experience in rehabilitative services for criminal offenders Patrice Guillory December 31, 2018 Victim's Representative Devorah Levine, Zero Tolerance Program Manager December 31, 2018 Page 254 of 363 EXHIBIT B - 2018 COMMUNITY CORRECTIONS PARTNERSHIP EXECUTIVE COMMITTEE Seat Appointee Term Expiration Chief Probation Officer (Chair) Todd Billeci ex-officio Presiding Judge (or designee)Jim Paulsen (designee of Presiding Judge)ex-officio District Attorney Diana Becton ex-officio Public Defender Robin Lipetzky ex-officio Sheriff David O. Livingston ex-officio Chief of Police Guy Swanger, City of Concord December 31, 2018 Representative approved by BOS from the following CCP members:Kathy Gallagher, Employment and Human Services Director December 31, 2018 *Head of the County department of social services *Head of the County department of mental health *Head of the County alcohol and substance abuse programs Page 255 of 363 MEMORANDUM July 12, 2011 To: Members, Board of Supervisors County Administrative Officers From: Paul McIntosh Executive Director Re: AB 117 and the Community Corrections Partnership (CCP) There continues to be a great deal of confusion and misunderstanding regarding the changes in the Community Corrections Partnership (CCP) encompassed in Assembly Bill 117 (Chapter 39, Statutes of 2011), passed as part of the 2011-12 budget. AB 117 did not change the make-up of the CCP, first formed in SB 678 in 2009, but does provide for revisions to the makeup of the CCP’s Executive Committee, which originally was established in AB 109 (Chapter 15, Statutes of 2011). The fourteen-member CCP in each county remains essentially unchanged and is comprised of the following (Penal Code Section 1230.1): Chief Probation Officer (Chair) Presiding Judge (or designee) County supervisor, CAO, or a designee of the BOS District Attorney Public Defender Sheriff Chief of Police Head of the County department of social services Head of the County department of mental health Head of the County department of employment Head of the County alcohol and substance abuse programs Head of the County Office of Education CBO representative with experience in rehabilitative services for criminal offenders Victims’ representative AB 117 requires the CCP to prepare an implementation plan that will enable the county to meet the goals of the public safety realignment. AB 117 is silent as to what those goals may be and provides counties with flexibility in how to address realignment. AB 117 does not abdicate the board of supervisor’s authority over appropriations and does not enable the CCP to direct how realignment funds will be spent. Page 256 of 363 The seven-member CCP Executive Committee, as provided in AB 117, is comprised of the following: Chief Probation Officer (Chair) Presiding Judge (or designee) District Attorney Public Defender Sheriff A Chief of Police The head of either the County department of social services, mental health, or alcohol and drug services (as designated by the board of supervisors) Under AB 117, the CCP would develop an implementation plan and the Executive Committee would vote to approve the plan and submit it to the board of supervisors. The plan would be deemed accepted unless the board of supervisors voted via a 4/5 vote to reject the plan and send it back to the CCP. Concerns have been raised regarding why the CAO or board member is not part of the Executive Committee and why a 4/5 vote is required to reject the plan. CSAC’s role in the drafting of this component of AB 117 was as one of several stakeholders involved in the public safety realignment. While most of the county stakeholders maintained general agreement on realignment issues during each phase of negotiations in general, there were disparate opinions in how the planning process should unfold. CSAC felt strongly that the only way realignment will be successful is if the planning effort results in a significant shift away from a predominantly incarceration model and movement to alternatives to incarceration. Therefore, it was critical that the planning process be structured to encourage compromise in the CCP to reach the goals of the community in a manner acceptable to the board of supervisors. The CAO, as you know, must be in a position to remain objective and provide the board of supervisors with unvarnished recommendations on matters that come before them. Having the CAO or a board member as part of the Executive Committee, and therefore casting a vote on the plan to be presented to the board of supervisors, would represent a conflict of interest to the CAO or board member and place them in a position that could compromise their independence. Rather, this approach seemed to capture the best of both worlds – the CAO is part of the planning process and can bring that global vision to that process but is also free to make contrary recommendations to the board of supervisors should they disagree with the ultimate plan adopted. Likewise with a member of the board of supervisors being part of the executive committee. Some have commented that the 4/5 vote requirement to reject the plan submitted by the CCP limits local flexibility and discretion of the board of supervisors. While the dynamics of the planning process will differ from county to county, the goal was to force consensus within the CCP and the planning process and not Page 257 of 363 provide an avenue for a participant to try to push their opinion outside of the CCP with the board of supervisors. A super majority makes an “end run” difficult, but still enables the board to reject the plan if the board disagrees with it. A 4/5 vote requirement is not unusual, but does place a higher level of focus on the planning process. It should be noted, as well, that counsel has opined that meetings of the CCP and the Executive Committee will be subject to the Brown Act and all discussions will be required to be conducted in a public meeting. AB 117 is not a perfect solution but it represents a negotiated agreement that will enable California’s counties to move forward with the dramatic changes necessary to make realignment successful. Clearly the successful implementation of realignment will require a significant paradigm shift in our public safety communities. The successful model will not be an incarceration model, but one that seeks to divert and rehabilitate citizens, returning them to be productive members of our community. Hopefully, the construct of the CCP – that is intended to drive the local public safety community to a consensus about a “different way of doing business” - will ultimately lead to that approach.   Page 258 of 363 PUBLIC PROTECTION COMMITTEE 7. Meeting Date:11/05/2018   Subject:Racial Justice Task Force Submitted For: David Twa, County Administrator  Department:County Administrator Referral No.: N/A   Referral Name: Further Input on Certain Racial Justice Task Force Recommendations  Presenter: Donté Blue Contact: D. Blue, 925-335-1977 Referral History: The Public Protection Committee accepted the "Racial Justice Task Force--Final Report and Recommendations" as presented on June 25, 2018. The "Racial Justice Task Force--Final Report and Recommendations" was presented to the Board of Supervisors for adoption on July 24, 2018. Prior to the Board meeting, however, Contra Costa County Sheriff, David O. Livingston, submitted a letter to the Supervisors, and County Administrator’s Office, raising concerns about the age of the data used in the Task Force’s report, and the validity of the conclusions derived from this data. Most importantly, this letter urged the Board to oppose Recommendation #21 (recommending the creation of an independent body to review in-custody grievances), and Recommendation #22(recommending the creation of an adult detention oversight body for conditions of confinement). The reason the Sheriff gave for these objections was that these recommendations exceeded the Task Force's scope of responsibility, the Sheriff is an elected constitutional officer independent of the Board of Supervisors, and the Office of Sheriff-Coroner is already subject to sufficient oversight and audits from the state by way of the Attorney General, Board of State and Community Corrections, and Civil Grand Jury of the Superior Court. Based on the Sheriff’s comments, the Supervisors received a preliminary opinion from County Counsel as to the Boards ability to act in accordance with the two challenged Task Force’s Recommendations. County Counsel opined that the Sheriff-Coroner enjoyed a level of autonomy over his department’s operation of the County’s jails, and the Board could not unilaterally interfere with this function. Furthermore, while the Board could convene an advisory body to report on information about these operations, gaining access to the information necessary to fulfill this function would still require some level of participation from Office of the Sheriff-Coroner. The Board then voted to strike Recommendations #18 and #19 (these appear as Recommendations #21 and #22 in the Final Report) before adopting the remainder of the Task Force's 20 recommendations and Final Report. In a separate motion, the Board referred the two stricken recommendations back to the Public Protection Committee with direction to gather input Page 259 of 363 from the Sheriff and Racial Justice Task Force to determine if there was some version of these recommendations that can be agreed upon and returned to the Board for reconsideration at a future date. On August 6, 2018, the Public Protection Committee met and considered this item. After consideration, the committee directed staff to convene the Task Force for a meeting to provide clarity as to what is meant by oversight, and requested County Counsel to attend the meeting to advise as to the authority the BOS has in this regard. The Task Force met September 5, 2018. During this meeting the Task Force was provided information about other models of Sheriff oversight used in the counties of Sacramento, San Diego, and Sonoma. What was provided, along with comments from the public, led the Task Force to believe there was additional information about different oversight models they would like to review. The Task Force also believed there would be immense value in including the Sheriff, or detention facility staff, in future discussions. The Task Force then recommended that it be allowed to continue its work until the formation of the Racial Justice Oversight Body, and this work should include the continued review and study of Recommendations #18 and #19. During this Committee’s meeting on September 10, 2018, the Task Force was directed to continue its consideration of other models of monitoring and oversight to further inform the group’s discussion. The Task Force was also directed to establish a small working group of Task Force members and the appropriate Sheriff staff to discuss possible amendments to Recommendations #18 and #19. In furtherance of this direction, the Racial Justice Task Force met again on October 9, 2018. Referral Update: During its October 2018 meeting, the Racial Justice Task Force was given a presentation that provided members of the Task Force with 1) key oversight/monitoring terms, 2) a list of the different forms of monitoring/oversight that occur in detention facilities, 3) descriptions of various law enforcement monitoring/oversight models, and 4) a selection of reasons jurisdictions consider having independent oversight/monitoring. The Task Force then discussed the creation of the small working group with Sheriff staff, and through this discussion determined they wanted to invite Assistant Sheriff Matthew Schuler to speak with the entire Task Force prior to forming the smaller working group. Because Assistant Sheriff Schuler is the executive administrator assigned to the County’s jail, the Task Force believed that this initial discussion with him would help inform the smaller working group’s conversation, and how it might approach further consideration of Task Force Recommendations #18 and #19. This next meeting of the Task Force has now been Scheduled for 9am on November 14, 2018. Recommendation(s)/Next Step(s): ACCEPT the update from the Office of Reentry and Justice regarding the activities of the Racial Justice Task Force, and 1. PROVIDE direction to staff as needed for the return of this referral to the Committee.2. Attachments Racial Justice Task Force Recommendations - Revised Final RJTF Memo - Revised Sheriff Letter to BOS Page 260 of 363 Sheriff Letter to PPC LA County - Office of Inspector General LA County - Civilian Oversight Commission LA County - Sheriff MOA with Inspector General Santa Clara County - Office of Correction and Law Enforcement Monitoring Existing Oversight/Monitoring of Sheriff's in California Types, Models & Reasons for Correctional Oversight/Monitoring Page 261 of 363 Contra Costa County Racial Justice Task Force – Final Recommendations June 2018 | 1 Recommendations Oversight and Accountability 1) The Racial Justice Task Force recommends that the Board of Supervisors appoint a Racial Justice Oversight Body (RJOB) to oversee the implementation of the recommendations made by the Task Force, as specified by the Board of Supervisors. The RJOB would meet on a quarterly basis and report to the Board on an annual basis. The RJOB shall be made up of the following members: 1. A representative from the Superior Court, as a non-voting member 2. The Sheriff or his designee 3. The Chief Probation Officer or his designee 4. The Public Defender or her designee 5. The District Attorney or her designee 6. A representative from a local law enforcement agency, nominated by the Contra Costa County Police Chiefs’ Assn. 7. A representative from the Contra Costa County Board of Education 8. A representative from Contra Costa County Health Services 9. Eight community-based representatives, that include at a minimum: a. Two members of the Racial Justice Coalition, b. Two individuals with prior personal criminal or juvenile justice system involvement, c. Three representatives from community-based organizations that work with individuals in the justice system, including at least one person who works directly with youth d. One representative from a faith-based organization Any individual may meet more than one of these qualifications. The RJTF further recommends that the work of this body be staffed by the County Office of Reentry and Justice, and that funds for facilitation be allocated through an RFP process. 1) a. The RJOB should or a subcommittee thereof should review local criminal and juvenile justice data in order to identify and report on racial disparities. This will include a review of use-of-force data, as available from the California Department of Justice’s Open Justice data. Diversion 2) With the goal of reducing racial disparities in the Contra Costa County criminal justice system, form a committee to recommend countywide criteria and protocols for formal and informal diversion. The recommendations shall be evidence-based and follow established best practices. In considering what criteria and protocols to recommend, the committee shall 1. Develop separate recommendations for adult and juvenile populations. Page 262 of 363 Contra Costa County Racial Justice Task Force – Final Recommendations June 2018 | 2 2. Strive to ensure the broadest possible pool of eligible participants. 3. Strive to ensure that prior criminal justice involvement does not bar a person’s eligibility for diversion. 4. Ensure that the inability to pay for the costs of diversion will not prohibit participation. 5. Recommend, as appropriate, partnerships between law enforcement agencies and community-based organizations to provide diversion services and oversight. This committee may be a subgroup of the Racial Justice Oversight Body (RJOB) and will report to the RJOB. 3) Expand the use of crisis intervention teams, mobile crisis teams, and behavioral health assessment teams so they are available across the County. 4) Local law enforcement agencies shall issue citations and establish non-enforcement diversion programs as an alternative to arrests. Data 5) All Contra Costa County justice partners and local law enforcement agencies shall collect individual-level data on all individual encounters with criminal and juvenile justice systems and processes. In so doing, they should consult best practices to balance data needs with confidentiality regulations. a. Office of Reentry and Justice (ORJ) should publish race-specific data (diversion, arrest, and outcomes on calls for service) online to create greater transparency and accountability of the County justice partners and LEAs. b. All Contra Costa County justice partners and local law enforcement agencies should improve capacity for data collection and analysis including expanding staff with data analysis capabilities. i. Probation Department, in partnership with County justice partners should assess tools regularly to ensure a decrease in racial disparities. c. Office of Reentry and Justice (ORJ) should support analysis of interventions implemented through the RJTF to measure efficacy and assess impact on racial disparities. County Support for Local Agencies 6) The County shall work with local enforcement agencies to seek funds that support the integration of de-escalation and behavioral health intervention trainings into local enforcement agency regional academy and/or department orientations. a. The County shall work with local enforcement agencies to seek funds to implement improved procedural justice practices and implicit bias training. i. Identify funding for procedural justice training utilizing the train the trainer model. Page 263 of 363 Contra Costa County Racial Justice Task Force – Final Recommendations June 2018 | 3 ii. Work with the Chief’s Association to create a forum to share information and strengthen promising practices around procedural justice and implicit bias trainings. 7) In addition, local enforcement agencies in CCC should: i. Ensure inclusion of de-escalation and behavioral health intervention trainings into local enforcement agency regional academy and/or department orientations ii. Provide procedural justice and implicit bias training to all staff 8) The County Office of Education shall provide resources to incentivize school districts to explore, evaluate, implement or expand existing non-punitive discipline practices, such as Positive Behavioral Interventions Support (PBIS) and Restorative Justice (RJ) practices. i. Identify funding for continuous training and technical assistance to all schools in the County to support implementation of PBIS and Restorative Justice, as well as data collection to assess implementation and impact. 9) The County Office of Education shall work with school districts to provide behavioral health services such as counseling, peer support, and early intervention services for youth presenting signs of emotional, mental, and/or behavioral distress. Community Engagement and Services 10) County justice partners shall establish formal partnerships with community-based organizations to provide greater capacity for i. diversion, ii. reentry programs, iii. alternatives to detention iv. pretrial services v. in custody programming All community-based organizations receiving funding from the County shall be evaluated for efficacy and effectiveness of program goals and objectives to ensure populations are appropriately served. Community input shall be an integral part of this process. 11) Establish a community capacity fund to build the capacity of community-based organizations – especially those staffed by formerly incarcerated individuals – to contract with the County and provide services to reentry clients. 12) The County and/or oversight body shall collaborate with the Community Corrections Partnership- Executive Committee (CCP-EC) to consider increasing realignment funding for community services. Practices Related to Trial and Adjudication Processes 13) Encourage the Superior Court to return to the process of jury selection whereby jurors are called to service to their local branch court for misdemeanor trials. Page 264 of 363 Contra Costa County Racial Justice Task Force – Final Recommendations June 2018 | 4 14)The Public Defender’s Office shall hire social workers who can assess clients’ psychosocial needs and link them to services. 15)The Public Defender’s Office, either directly or through partnerships with community-based organizations, should offer civil legal representation to clients. For youth, this should focus on educational advocacy. Confinement 16)Expand eligibility for pre-trial services and increase pre-trial services staffing, with a focus on reducing racial disparities and replacing the money bail system. 17)Expand the current pre-release pilot to serve all individuals in custody. 18)Establish an independent grievance process for individuals in custody in the County adult detention facilities to report concerns related to conditions of confinement based on gender, race, religion, and national origin. This process shall not operate via the Sheriff’s Office or require any review by Sheriff’s Office staff. 19)Establish an independent monitoring body to oversee conditions of confinement in County adult detention facilities based on gender, race, religion, and national origin and report back to the Board of Supervisors. Other 20)All County staff shall participate in and complete implicit bias training. AFTER FULL CONSIDERATION OF THE MATTER DURING ITS JULY 24, 2018, MEETING, RECOMMENDATIONS #18 AND #19 WERE NOT ADOPTED BY THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS. INSTEAD, THESE TWO RECOMMENDATIONS HAVE BEEN SEPERATELY REFERRED TO THE BOARD'S PUBLIC PROTECTION COMMITTEE TO GARNER ADDITIONAL INPUT FROM BOTH THE SHERIFF AND MEMBERS OF THE RACIAL JUSTICE TASK FORCE PRIOR TO BEING RETURNED TO THE BOARD FOR ANY FURTHER CONSIDERATION. PLEASE NOTE THE FOLLOWING: Page 265 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 1 Final Report to Board of Supervisors Introduction Overview of Racial Justice Task Force On April 12, 2016 the Contra Costa County Board of Supervisors (Board) unanimously voted to create the Racial Justice Task Force (RJTF), prompted in large part by the activism and advocacy of the Contra Costa County Racial Justice Coalition. Tasked with building on the County’s 2008 report and recommendations, “Disproportionate Minority Contact: Reducing Disparities in Contra Costa County,” the 17-member body was designed to represent a range of local stakeholders, including County criminal and juvenile justice agencies, County health and behavioral health, community-based organizations, local school districts and law enforcement agencies, and the community at large. In February 2017, Resource Development Associates (RDA) was hired to provide Task Force facilitation and data analysis services and on April 5, 2017, the RJTF convened for the first time. The RJTF met monthly from April 2017 through June 2018 to review data on local criminal and juvenile justice systems and processes, discuss best practices and emerging practices for addressing racial disparities in those systems and processes, and develop recommendations for action to address those disparities. Two ad hoc subcommittees were also convened to foster community engagement and plan for two series of community forums. In November 2017, the RJTF hosted 5 community forums to solicit residents’ input on priority areas for the Task Force to focus on and in May 2018, the RJTF hosted 3 additional forums to solicit input on preliminary recommendations. On June 6, 2018, the Task Force met for the last time to vote on recommendations to present to the Board of Supervisors. The purpose of this memo is to present those recommendations to the Board and the larger body of local stakeholders in order to move forward their adoptions and implementation. This memo begins with a brief discussion of the considerations taken into account by the RJTF as it developed these recommendations, followed by an overview of the racial disparities in Contra Costa County, and then a presentation of recommendations. Appendices provide more information on the Task Force voting process, including a breakdown of how each RJTF member voted on each recommendation, as well as additional data on disparities in local criminal and juvenile justice systems. Considerations in RJTF Areas of Focus and Recommendations The criminal and juvenile justice systems are comprised of a wide array of agencies and organizations that have different statutory responsibilities and authority and operate in different jurisdictions (Figure 1). As the RJTF began its work, the group had to grapple with two key considerations related to the scope of the justice system and of the Task Force itself: 1) whether to focus only on agencies and processes under County jurisdiction and authority, and 2) how to prioritize breadth, and make recommendations across Page 266 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 2 the justice system, or depth, and make a smaller number of recommendations but with greater specificity and readiness for implementation. In terms of the former, RJTF members quickly agreed that despite the body having been convened to make recommendations for County action, it was impossible to understand disparities in County justice processes without first examining adults’ and youths’ entry into these processes, namely arrests and other issues related to local law enforcement. Therefore, both data and recommendations below are inclusive of criminal justice system agencies that operate within Contra Costa County but do not report to the Board, including local law enforcement agencies and the Superior Court. There are also recommendations for the school districts that operate within the County. Figure 1. Overview of Criminal and Juvenile Justice System Process In addition to taking a more expansive approach in deciding which justice system agencies and processes to include under its purview, the RJTF also agreed to take a broad focus, looking at disparities across criminal and juvenile justice processes and putting forth an extensive set of recommendations to address all of them, rather than a narrower focus on any one process or area of focus. As a consequence, the recommendations made here should be viewed as a starting point as part of a longer implementation process. The Basic Criminal & Juvenile Justice System Process Page 267 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 3 In addition to the two considerations described above, as the RJTF engaged in the process of developing recommendations, one other key decision point regularly emerged for consideration: whether and how much to focus on feasibility—and affordability—in making recommendations to the Board. Ultimately, the majority of RJTF members felt strongly that the task of this body was to review data and make recommendations based on observed disparities; RJTF members did not want the scope of these recommendations to be constrained by “likely” County action, agreeing that if a recommendation was important, the Task Force should make it rather than pre-determining what the County might ultimately implement. Key Findings: Overview of Racial Disparities in Contra Costa County Criminal and Juvenile Justice Systems and Processes Obtaining and examining data on racial disparities within the justice system was a critical step in the RJTF’s process and allowed the Task Force to identify key junctures where disparities exist in order to target interventions. A number of data limitations, tied to both data availability and data access, meant that the RJTF was not able to examine all data points of interest, driving a number of recommendations related to data collection and reporting. The lack of available data was a consistent challenge throughout this process, and key challenges included:  Inconsistent data collection across the many local law enforcement agencies (LEAs) in Contra Costa County meant that the RJTF was not able to obtain up-to-date, racially specific data about law enforcement processes and practices; different LEA collect different data elements, have different policies and procedures around the dissemination of data collected, and have varying internal capacity for data management and analysis;  Concerns about protecting youth’s confidentiality limited the Court’s willingness to make juvenile delinquency court data available; and  California Judicial Council guidance to the Contra Costa County Court Executive Officer discouraged the Court from sharing individual-level criminal court data. Because of these challenges, the RJTF had limited ability to obtain he type of individual-level data necessary to track racial disparities across different points in the criminal or juvenile justice process and relied largely on aggregate data and/or data available through public data sources. Data were collected from the State of California Department of Justice (DOJ) Criminal Justice Statistics Center (CJSC), the Contra Costa County Probation Department, the Contra Costa County Superior Court, the Contra Costa County Sheriff’s Office, and the Contra Costa County Racial Justice Coalition. Because different data are available from different sources at different points in time, these data span from 2013 through 2017. Based on the data that was available, the following findings emerged: Page 268 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 4 Law Enforcement Disparities Finding 1. Higher arrest rates for Black youth and adults across Contra Costa County drive disparities in justice system involvement and outcomes. According to data from the State of California DOJ CJSC, in both 2013 and 2014, Blacks were more likely to be arrested than individuals from any other racial/ethnic group in every city except one in Contra Costa County. While the specific rate of the disparity varied by city the disparity tended to be higher in cities with smaller black populations (see Appendix B for more information). Across the County, Black adults were more than 3 times more likely to be arrested than adults from any other racial/ethnic group, and Black youth were more than 7 times more likely to be arrested than youth from any other racial/ethnic group. Figure 2. Contra Costa County, 2014 Adult Arrests per 1,000 Figure 3. Contra Costa County, 2014 Juvenile Arrests per 1,000 18 20 17 2 5 5 7 0 3 4 7 0 2 2 2 0 0 5 10 15 20 25 Violent Property Drug SexArrest Rate Black Latino White Other 12 7 2 1111 0111 0000 0 0 5 10 15 20 25 Violent Property Drug SexArrest RateBlack Latino White Other Page 269 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 5 Finding 2. While this finding is consistent across cities in the County, differences in the offenses with the greatest disparities indicates that different local contexts drive these disparities. Despite the clear and consistent trend in Blacks being arrested more than any other racial/ethnic group, 2013 and 2014 DOJ data that there are notable differences in the rate of this disparity, as well as in the specific offenses for which Black residents are disproportionately arrested. For example, some cities show the greatest rate of disparity for felony offenses, while others show greater disparities for misdemeanors; similarly, some cities show greater disparities for violent offenses, while others show greater disparities for property or drug crime. What these data make clear is that different local patterns and practices drive these disparities. This finding was also supported by qualitative data collection, which showed that the practices related to routing people away from formal criminal or juvenile justice processing—known ask “diversion”—vary greatly across Contra Costa County. Different cities have different approaches to both formal and informal diversion, including different offenses for which they are willing to divert people and differences in whether and to what extent individuals who are arrested may be diverted to local organizations to address underlying issues that may lead to criminal or delinquent behavior and, subsequently, arrests. Juvenile Justice Disparities Finding 3. Black youth in Contra Costa County were much more likely than Latino and White youth to be referred to Probation. Unsurprisingly given the disproportionate rate at which Black you are arrested, data from the Contra Costa County Probation Department indicate that Black youth are more likely to be referred to Probation for possible further delinquency system processing. According to data from the Probation Department, in 2014 and 2015, Black youth were between 9-11 times more likely to be referred to Probation than White youth and 5-6 times more likely to be referred than Latino youth. Latino youth were also approximately twice as likely to be referred to Probation as White youth. As noted above, the RJTF was not able to obtain individual-level data on youth arrests or referrals, so we could not determine whether or not Black youth were more likely to be referred for similar offenses. Finding 4. Black and Latino youth were more likely than White youth to be detained prior to adjudication. Among youth who were referred to the Probation Department, both Black and Latino youth were more likely to be detained in the County’s Juvenile Hall, based on Probation data from 20 14 and 2015. Both Black and Latino youth were 50% more likely to be detained than White youth after being referred to Probation and, because Black youth are already overrepresented in youth who are arrested and referred to Probation, Black youth who live in Contra Costa County are detained in Juvenile Hall at 14-16 times the rate of White youth. Again, data limitations limited the RJTF’s ability to compare the specific circumstances under which different youth were detained. Page 270 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 6 Finding 5. In 2014, Black youth were sent to secure confinement at a higher rate than all o ther races; relative to being a ward of the Court, Hispanic youth were securely confined at a higher rate. Among youth who are adjudicated delinquent, Black and Latino youth are more likely to receive a disposition that involved secure confinement, including either the Orin Allen Youth Rehabilitation Facility (“the Ranch”) or the California Department of Juvenile Justice (DJJ). According to Probation data from 2014 and 2015, Black youth were 50% to 200% more likely to be sent to secure conferment and Lat ino youth were 80% to 300% more likely than Whites; because of the cumulative disparities across the juvenile justice system, Black youth in Contra Costa County are confined 16-14 times often as White youth. Criminal Justice Disparities Finding 6. In 2014 and 2015, a greater proportion of cases with Latino or Black defendants had charge enhancements than cases with White defendants. Sentencing enhancements are additional charges within the California Penal Code that allow for additional prison time if an underlying fact or condition is met. There are two kinds of enhancements that can increase the penalties for individuals who are convicted of a criminal offense, “charge enhancements” and “person enhancements.” Charge enhancements can occur when something about the way a crime is committed make the offense eligible for a more serious sentence that it would usually be, for example if someone is convicted of possessing or distributing drugs in a “drug free zone,” around a school or other designated area. Data from the Contra Costa County Superior Court for 2015 and 2016 show that a greater proportion of Black and Latino defendants have charge enhancements, meaning that they are likely receiving more serious penalties for comparable offenses as White defendants. Finding 7. In 2014 and 2015, a greater proportion of Black defendants had person enhancements than either Latino or White defendants. An individual can also be eligible for a more serious sentence if he or she has a prior criminal history via “person enhancements,” such as three strikes laws and other “habitual offender” laws. Data from the Contra Costa County Superior Court for 2015 and 2016 show that a greater proportion of Black defendants have person enhancements than White defendants, meaning that they are likely receiving more serious penalties for comparable offenses as White defendants. Although the data available to the RJTF did not allow us to compare the outcomes of defendants of different race/ethnicity with the same charges, this 17% 23%22% 28%28%31% 0% 20% 40% 60% 80% 100% 2014 2015 Figure 4. Black and Latino defendants are more likely to have charge enhancements than Whites White Black Latino Page 271 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 7 pattern is nonetheless important in light of a growing body of research showing that both kinds of enhancements are a major driver of disparities in imprisonment.i In particular, research has shown that Blacks are more likely to live in “drug free zones,” increasing the likelihood that they will be eligible for place-based enhancements; in addition, higher overall context with law enforcement and the criminal justice system has cumulative effects whereby Black defendants are more impacted by habitual offender laws. ii iii Finding 8. From 2015 to 2017, Black adults in Contra Costa County were more likely than Latino or White adults to be detained pre-trial. Data from the Contra Costa County Sheriff’s Office showed that in 2016 and 2017, Black and Latino defendants were disproportionately likely to be detained pretrial than White defendants. The reasons for this included both court decisions related to bail and release as well as defendants’ ability to pay bail and obtain release. Given the cumulative disparities across criminal justice processes, Black residents of Contra Costa County are held in pretrial detention at almost 7 times the rate of White residents; Latino residents are held in pretrial detention at 2.5 times the rate of Whites. Finding 9. Changes to County jury selection processes have increased disparities in who services on juries in Contra Costa County. Starting in 2011, Contra Costa County Superior Court made changes to the jury selection process and misdemeanor trial locations. Whereas previously, jurors for misdemeanor trials had been selected regionally to serve on trials in East, West and Central county regions, so that the jury pool was representative of the region in which an alleged crime occurred, beginning in 2011, the Court centralized the trials to occur at the Martinez Courthouse and began selecting jurors from a countywide pool. In tandem, these processes appear to have resulted in juries that are more White and less representative of the overall County population. 516 564 404 532 341 381 144 134 100 92 78 102 432 530 372 397 284 309 438 679 175 267 304 474 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Detention Non-detention- Bail Non-detention- OR Non-detention- Letter to appear 2016 2017 2016 2017 2016 2017 Figure 5. Black defendants are most likely to be detained pretrial White Black Latino Page 272 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 8 Recommendations Oversight and Accountability While the Contra Costa County RJTF has made critical progress in developing a broad set of recommendations for addressing racial disparities in the County’s criminal and juvenile justice systems, there is much work to be done to implement these recommendations and assess their efficacy. Moreover, it is critical to the RJTF that this be done transparently and with ongoing input from a diverse array of stakeholders. 1) The Racial Justice Task Force recommends that the Board of Supervisors appoint a Racial Justice Oversight Body (RJOB) to oversee the implementation of the recommendations made by the Task Force, as specified by the Board of Supervisors. The RJOB would meet on a quarterly basis and report to the Board on an annual basis. The RJOB shall be made up of the following members: 1. A representative from the Superior Court, as a non-voting member 2. The Sheriff or his designee 3. The Chief Probation Officer or his designee 4. The Public Defender or her designee 5. The District Attorney or her designee 6. A representative from a local law enforcement agency, nominated by the Contra Costa County Police Chiefs’ Association 7. A representative from the Contra Costa County Board of Education 8. A representative from Contra Costa County Health Services 9. Eight community-based representatives, that include at a minimum: a. Two members of the Racial Justice Coalition, b. Two individuals with prior personal criminal or juvenile justice system involvement, c. Three representatives from community-based organizations that work with individuals in the justice system, including at least one person who works directly with youth d. One representative from a faith-based organization Any individual may meet more than one of these qualifications. The RJTF further recommends that the work of this body be staffed by the County Office of Reentry and Justice, and that funds for facilitation be allocated through an RFP process. 1) a. The RJOB should or a subcommittee thereof should review local criminal and juvenile justice data in order to identify and report on racial disparities. This will include a review of use-of-force data, as available from the California Department of Justice’s Open Justice data. Page 273 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 9 Diversion Diversion is a broad umbrella term that refers to the process of diverting individuals from formal criminal or delinquent processes following an encounter with law enforcement. Informal diversion may include the decision by a law enforcement officer not to arrest someone from criminal or delinquent behavior or, after arresting someone, choosing not to refer the person onto the District Attorney or Probation Department. Formal diversion generally involves linking individuals to services, supports, and opportunities that can help them address underlying issues that may lead to criminal or delinquent behavior. By helping people avoid formal justice system processing, diversion can be a critical vehicle for reducing racial disparities in the justice system. iv v While diversion programs and practices redirect contact with the justice system, local jurisdictions must be aware that racial disparities can exist in this decision point and further exacerbate racial disparities if decision-making is not carefully monitored. In addition, because Blacks are so much more likely to have contact with the justice system and are often charged with more serious offenses than individuals from other racial/ethnic groups, diversion efforts that exclude people with prior justice system contact and/or are only limited to the most minor offenses often exacerbate racial disparities. Effective diversion programs are targeted, collaborative, and data driven. Diversion is currently implemented inconsistently across Contra Costa County. May local law enforcement agencies have their own diversion approaches and programs, but neither diversionary offenses nor diversion programs/processes are standardized across the county. At the County level, the District Attorney’s Office has some limited diversion programs, such as the Bad Check Diversion Restitution program, and the Probation Department informally diverts youth whose offense are not determined appropriate for formal processing. 2) With the goal of reducing racial disparities in the Contra Costa County criminal justice system, form a committee to recommend countywide criteria and protocols for formal and informal diversion. The recommendations shall be evidence-based and follow established best practices. In considering what criteria and protocols to recommend, the committee shall 1. Develop separate recommendations for adult and juvenile populations. 2. Strive to ensure the broadest possible pool of eligible participants. 3. Strive to ensure that prior criminal justice involvement does not bar a person’s eligibility for diversion. 4. Ensure that the inability to pay for the costs of diversion will not prohibit participation. 5. Recommend, as appropriate, partnerships between law enforcement agencies and community-based organizations to provide diversion services and oversight. This committee may be a subgroup of the Racial Justice Oversight Body (RJOB) and will report to the RJOB. Page 274 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 10 3) Expand the use of crisis intervention teams, mobile crisis teams, and behavioral health assessment teams so they are available across the County. 4) Local law enforcement agencies shall issue citations and establish non-enforcement diversion programs as an alternative to arrests. Data Thorough data collection and use are essential to monitoring and tracking whether agencies are producing equitable outcomes across race and ethnicity, and efforts to address bias and disproportionate minority contact throughout justice systems are succeeding. Data collection, analysis and reporting disaggregated by race, ethnicity, geography and offense will give stakeholders visibility on efficacy and implementation fidelity of interventions, where disparities persist, whether progress to reduce disparities is being made, and whether the strategies are properly implemented. Ultimately, data driven processes increase transparency and legitimacy to broader stakeholders about the initiatives to reduce disparities in the county. Although County criminal justice system agencies and local law enforcement agencies in Contra Costa County generally collect data about individual contact with different criminal or juvenile justice systems, there has been no systematic countywide effort to standardize what data are collected, define how race is identified and tracked across different systems, or agree on reporting processes. In addition, although the County has used AB 109 funds to invest in client data management systems for several public agencies, these agencies tend to lack to the capacity to extract and analyze these data on a regular basis. 5) All Contra Costa County justice partners and local law enforcement agencies shall collect individual-level data on all individual encounters with criminal and juvenile justice systems and processes. In so doing, they should consult best practices to balance data needs with confidentiality regulations. a. Office of Reentry and Justice (ORJ) should publish race-specific data (diversion, arrest, and outcomes on calls for service) online to create greater transparency and accountability of the County justice partners and LEAs. b. All Contra Costa County justice partners and local law enforcement agencies should improve capacity for data collection and analysis including expanding staff with data analysis capabilities. i. Probation Department, in partnership with County justice partners should assess tools regularly to ensure a decrease in racial disparities. c. Office of Reentry and Justice (ORJ) should support analysis of interventions implemented through the RJTF to measure efficacy and assess impact on racial disparities. Page 275 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 11 County Support for Local Agencies As Figure 1. Overview of Criminal and Juvenile Justice System Process on page 2 makes clear, county-level criminal and juvenile justice agencies are fundamentally connected to and impacted by the policies and practices of non-county agencies. In particular, city-level law enforcement practices necessarily determine who ends up in County-level justice system agencies. In addition, school district approaches to school discipline have a direct relationship with whether or not youth are referred to county juvenile justice systems. Thus, while the RJTF was convened by the Contra Costa County Board of Supervisors to make recommendations for County processes, the following recommendations are based on addressing the inherent interconnectedness of County and more local processes. 6) The County shall work with local enforcement agencies to seek funds that support the integration of de-escalation and behavioral health intervention trainings into local enforcement agency regional academy and/or department orientations. a. The County shall work with local enforcement agencies to seek funds to implement improved procedural justice practices and implicit bias training. i. Identify funding for procedural justice training utilizing the train the trainer model. ii. Work with the Chief’s Association to create a forum to share information and strengthen promising practices around procedural justice and implicit bias trainings. 7) In addition, local enforcement agencies in CCC should: i. Ensure inclusion of de-escalation and behavioral health intervention trainings into local enforcement agency regional academy and/or department orientations ii. Provide procedural justice and implicit bias training to all staff 8) The County Office of Education shall provide resources to incentivize school districts to explore, evaluate, implement or expand existing non-punitive discipline practices, such as Positive Behavioral Interventions Support (PBIS) and Restorative Justice (RJ) practices. i. Identify funding for continuous training and technical assistance to all schools in the County to support implementation of PBIS and Restorative Justice, as well as data collection to assess implementation and impact. 9) The County Office of Education shall work with school districts to provide behavioral health services such as counseling, peer support, and early intervention services for youth presenting signs of emotional, mental, and/or behavioral distress. Community Engagement and Services Collaboration and structured partnerships with the community is essential. The justice system needs to recognize community based organizations and faith-based organizations as legitimate partners in Page 276 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 12 reducing disparities. The community brings urgency, insight and creative solutions that can acutely reduce disparities and bring about a lasting change especially around reintegration and serving as alternatives to justice involvement. Reentry programming in Contra Costa County is provided regionally using AB 109 funding, with the Reentry Success Center serving West County and HealthRIGHT360 delivering services under the Central- East Network of Services, also known as The Network. The Reentry Success Center provides services to individuals and families impacted by incarceration, helping to plan critical next steps after contact with police or courts. In addition, AB 109 funding supports a range of services and supports for any individual with a history of justice system involvement. The County is also in the process of revising its reentry strategic plan through a community -engagement and planning process. 10) County justice partners shall establish formal partnerships with community-based organizations to provide greater capacity for i. diversion, ii. reentry programs, iii. alternatives to detention iv. pretrial services v. in custody programming All community-based organizations receiving funding from the County shall be evaluated for efficacy and effectiveness of program goals and objectives to ensure populations are appropriately served. Community input shall be an integral part of this process. 11) Establish a community capacity fund to build the capacity of community-based organizations – especially those staffed by formerly incarcerated individuals – to contract with the County and provide services to reentry clients. 12) The County and/or oversight body shall collaborate with the Community Corrections Partnership- Executive Committee (CCP-EC) to consider increasing realignment funding for community services. Practices Related to Trial and Adjudication Processes There are a number of practices that agencies involved in the adjudication process – courts, prosecution, and defense – can implement to reduce racial disparities in the justice system. For the Court, using a jury pool that is as representative as possible to the local population increases the likelihood that individuals are judged by a jury of their peers. District Attorney’s Offices wield a great deal of power through their ability to decide whether and how to charge an individual with a criminal offense, as well as whether to request money bail or a release on recognizance. Public Defenders Offices, as the public agency Page 277 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 13 advocating for the rights of individuals accused of crimes, are uniquely situated to support defendants, not only through vigorous defense but also by providing other services aimed at both addressing underlying issues that may be associated with justice system involvement, such as behavioral health issues, as well as by providing legal services to help people address some of the collateral consequences of criminal justice contact, such as immigration or child welfare issues. Contra Costa County uses a master jury list created by combining a list of all registered voters as well as persons who have a valid driver’s license or identification card issued by the Department of Motor Vehicles. Contra Costa County employs a One Day/One Trial system, were vi Under this system, individuals are typically assigned to jury selection after one day at the courthouse, and then their service is complete for at least 12 months.vii Individuals are selected from a countywide pool. The District Attorney’s Office does not currently have any official policies regarding the use of sentence enhancements or bail requests.1 The Public Defender’s Office currently employs several social workers, funded through AB 109, who work with clients to support both legal advocacy and linkage to services to address psychosocial needs. 13) Encourage the Superior Court to return to the process of jury selection whereby jurors are called to service to their local branch court for misdemeanor trials. 14) The Public Defender’s Office shall hire social workers who can assess clients’ psychosocial needs and link them to services. 15) The Public Defender’s Office, either directly or through partnerships with community-based organizations, should offer civil legal representation to clients. For youth, this should focus on educational advocacy. Confinement Indiscriminate use of confinement increases racial and ethnic disparity. Disparities in confinement can be reduced when successful and robust strategies are implemented at the front end of the justice system. Strategies to reduce racial and ethnic disparities in confinement address policies and practices that affect discipline, conditions of confinement, and facilitate smooth reintegration into the community. Contra Costa County has placed emphasis on developing formalized partnerships between the Office of the Public Defender, Probation, the Sheriff’s Department, and the District Attorney’s Office in order to decrease the pretrial in-custody population. Through this collaboration, the County has developed the cross-departmental Pretrial Services (PTS) and Arraignment Court Early Representation (ACER) program. PTS provides judges with greater information by using a modified version of the Virginia Pretrial Risk Assessment Instrument (VPRAI). ACER ensures the presence of attorneys at defendants’ initial court 1 The RJTF considered but did not ultimately support a recommendation to limit the use of sentence enhancements. Page 278 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 14 appearances and is intended to increase the likelihood that appropriate defendants will be released on their own recognizance (OR) for the duration of the court process and allow for the expedited resolution of cases. Contra Costa County also worked with RDA to develop a pre-release planning pilot program plan, and has recently implemented a pre-release planning pilot program in the County. Finally, the County’s Custody Alternative Facility allows individuals who are low risk to public safety to be released from custody and supervised by deputies from the Sheriff’s Office. 16) Expand eligibility for pre-trial services and increase pre-trial services staffing, with a focus on reducing racial disparities and replacing the money bail system. 17) Expand the current pre-release pilot to serve all individuals in custody. 18) Establish an independent grievance process for individuals in custody in the County adult detention facilities to report concerns related to conditions of confinement based on gender, race, religion, and national origin. This process shall not operate via the Sheriff’s Office or require any review by Sheriff’s Office staff. 19) Establish an independent monitoring body to oversee conditions of confinement in County adult detention facilities based on gender, race, religion, and national origin and report back to the Board of Supervisors. Other 20) All County staff shall participate in and complete implicit bias training. Next Steps The RJTF has made important progress in reducing racial disparities in Contra Costa County justice systems and there are a number of next steps that will be essential for carrying this work forward. The first recommendations provided here – the creation of a Racial Justice Oversight Body – will be an essential vehicle for taking these steps, and establishing the RJOB is an important next step. Once this Body has been established, staffed, and membership recruited, there are several steps necessary to ensure its progress and efficacy: 1. Prioritization of recommendations: the RJTF intentionally choose to take a broad view of its charge and developed a lengthy set of recommendations across justice systems and processes. Further action will now require greater focus on a smaller set of recommendations in order to delineate and then implement the concrete steps necessary for implementation. Toward this end, the County and/or RJOB must prioritize those recommendations of greatest interest, in particular identifying those that will be addressed in the upcoming fiscal year versus those that will be addressed in subsequent years. Page 279 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | 15 2. Establish subcommittees: For each recommendation selected for immediate action, the RJOB should convene a subcommittee of RJOB members who bring expertise in and commitment to addressing that issue or topic area. These subcommittees should include public agency and community member representation and be small enough to do concrete implementation planning. 3. Develop workplans: Each subcommittee must develop a workplan that delineates core steps for implementing the recommendation(s) that it is working on, including timelines and roles and responsibilities. This will require identifying the individuals and organizations that have influence and authority over changes to policy and practice and establishing processes for engagement them in next steps. i Nazgol Ghandnoosh. “Black Lives Matter: Eliminating Racial Inequity In The Criminal Justice System,” The Sentencing Project. 2015. ii Ibid. iii John MacDonald and Steven Raphael. “An Analysis of Racial and Ethnic Disparities in Case Dispositions and Sentencing Outcomes for Criminal Cases Presented to and Processed by the Office of the San Francisco District Attorney.” (2017). iv Ryan C. Wagoner, Carol A. Schubert, and Edward P. Mulvey, “Probation Intensity, Self -Reported Offending, and Psychopathy in Juveniles on Probation for Serious Offenses,” Journal of the American Academy of Psychiatry and the Law Online 43, no. 2 (June 1, 2015): 191–200. v Youth.Gov: Points of Intervention. (2017). Retrieved December 15, 2017 f rom https://youth.gov/youth- topics/juvenile-justice/points-intervention vi http://www.cc-courts.org/jury/general.aspx vii http://www.courts.ca.gov/documents/jurysys.pdf Page 280 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | i Appendix A: Detailed Summary of Votes When the RJTF began meeting, members established a series of working agreements that were designed to ensure that all perspectives were valued and that dissenting views were given due consideration. Toward that end, the Task Force agreed to a voting process whereby members could choose one of three options in responding to recommendations: 1. support, 2. do not support, and 3. oppose. If four or more RJTF members—or one-quarter—of the voting RJTF members oppose any action or recommendation, the Task Force agreed that it would not pass. Task Force members could also abstain from any vote. Oversight and Accountability 1) The Racial Justice Task Force recommends that the Board of Supervisors appoint a Racial Justice Oversight Body (RJOB) to oversee the implementation of the recommendations made by the Task Force, as specified by the Board of Supervisors. The RJOB would meet on a quarterly basis and report to the Board on an annual basis. The RJOB shall be made up of the following members: 1. A representative from the Superior Court, as a non-voting member 2. The Sheriff or his designee 3. The Chief Probation Officer or his designee 4. The Public Defender or her designee 5. The District Attorney or her designee 6. A representative from a local law enforcement agency, nominated by the Contra Costa County Police Chiefs’ Assn. 7. A representative from the Contra Costa County Board of Education 8. A representative from Contra Costa County Health Services 9. Eight community-based representatives, that include at a minimum: a. Two members of the Racial Justice Coalition, b. Two individuals with prior personal criminal or juvenile justice system involvement, c. Three representatives from community-based organizations that work with individuals in the justice system, including at least one person who works directly with youth d. One representative from a faith-based organization Any individual may meet more than one of these qualifications. The RJTF further recommends that the work of this body be staffed by the County Office of Reentry and Justice, and that funds for facilitation be allocated through an RFP process. 1 The RJTF spent several meetings discussing and refining these recommendations. Through this process, some recommendations were combined or rearranged; as a result, there are some times gaps in numbering. Page 281 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | ii Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed The RJOB should or a subcommittee thereof should review local criminal and juvenile justice data in order to identify and report on racial disparities. This will include a review of use-of-force data, as available from the California Department of Justice’s Open Justice data. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed Diversion With the goal of reducing racial disparities in the Contra Costa County criminal justice system, form a committee to recommend countywide criteria and protocols for formal and informal diversion. The recommendations shall be evidence-based and follow established best practices. In considering what criteria and protocols to recommend, the committee shall 1. Develop separate recommendations for adult and juvenile populations. 2. Strive to ensure the broadest possible pool of eligible participants. 3. Strive to ensure that prior criminal justice involvement does not bar a person’s eligibility for diversion. 4. Ensure that the inability to pay for the costs of diversion will not be a bar to eligibility or participation. Page 282 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | iii Recommend, as appropriate, partnerships between law enforcement agencies and community based organizations to provide diversion services and oversight. This committee may be a subgroup of the Racial Justice Oversight Body (RJOB) and will report to the RJOB. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, Marcus Walton, William Walker, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 12 Do Not Support 0 Oppose 0 Abstain John Lowden, Cardenas Shackelford 2 Result: Passed County criminal and juvenile justice agencies and the Police Chief’s Association shall establish criteria for informal and formal diversion, with a focus on those offenses with greatest racial disparity. Toward that end, the County shall identify the offenses for which Black and Latinos are most disproportionately arrested, charged, and convicted and use those as a starting point for diversion efforts. Vote by Members* Vote Members Total Support 0 Do Not Support 0 Oppose 0 Abstain 0 * Members did not vote as Revised Recommendation #2 passed Result: Failed Criteria for diversion shall include non-violent felony level crimes such as burglary. Vote by Members* Vote Members Total Support 0 Do Not Support 0 Oppose 0 Abstain 0 * Members did not vote as Revised Recommendation #2 passed Page 283 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | iv Result: Failed Criteria for diversion shall allow individuals with prior justice system involvement to be diverted. Vote by Members* Vote Members Total Support 0 Do Not Support 0 Oppose 0 Abstain 0 * Members did not vote as Revised Recommendation #2 passed Result: Failed Local enforcement agencies shall establish formal partnerships with community based organizations to provide diversion programs & services for youth and adults. Inability to pay shall not prohibit participation in diversion programs. Vote by Members* Vote Members Total Support 0 Do Not Support 0 Oppose 0 Abstain 0 * Members did not vote as Revised Recommendation #2 passed Result: Failed County justice partners shall establish formal partnerships with community based organizations to provide diversion programs & services for youth and adults. Inability to pay shall not prohibit participation in diversion programs. Vote by Members* Vote Members Total Support 0 Do Not Support 0 Oppose 0 Abstain 0 * Members did not vote as Revised Recommendation #2 passed Page 284 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | v Result: Failed Expand the use of crisis intervention teams, mobile crisis teams, and system-wide behavioral health assessment teams so they are available across the County. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed Local law enforcement agencies shall issue citations and establish non-enforcement diversion as an alternative to arrests. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Dennisha Marsh, Debra Mason, Robin Lipetzky 13 Do Not Support 0 Oppose 0 Abstain Harlan Grossman 1 Result: Passed Page 285 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | vi Data All Contra Costa County criminal justice agencies and local law enforcement agencies shall collect individual-level data on all individual encounters with criminal and juvenile justice systems and processes. In so doing, they shall consult best practices to balance data needs with confidentiality concerns. Vote by Members Vote Members Total Support Bisa French, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 13 Do Not Support 0 Oppose 0 Abstain Todd Billeci 1 Result: Passed Office of Reentry and Justice shall publish race-specific data on all of the above online to create greater transparency and accountability of the County criminal justice agencies and local enforcement agencies. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Discussion: Todd Billeci shared there may be court-involved issues attaining juvenile data Result: Passed Page 286 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | vii All Contra Costa County criminal justice agencies and local law enforcement agencies shall improve capacity for data collection and analysis including expanding staff with data analysis capabilities. Vote by Members Vote Members Total Support Leslie Takahashi, Venus Johnson, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 11 Do Not Support 0 Oppose 0 Abstain Bisa French, Todd Billeci, John Lowden, 3 Discussion: Bisa French shared concern about the fiscal impact of this recommendation. Todd Billeci shared he does not like the word “shall” in this recommendation. Venus Johnson shared she whole heartedly believes system change is driven through data and policy however, the Board does not have the authority to make this happen. She stated all agencies should be working independently towards better data collection and analysis to drive policy change. . John Lowden shared he will abstain in interest of other agencies. Harlan Grossman shared he is unsure who has the authority to do this. Result: Passed Office of Reentry and Justice shall support analysis of interventions implemented through the RJTF to measure efficacy and assess impact on racial disparities. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed Page 287 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | viii County Support for Local Agencies The County shall provide resources to ensure integration of de-escalation and behavioral health intervention trainings into local enforcement agency regional academy and/or department orientations. Vote by Members Vote Members Total Support Bisa French, Marcus Walton, Tamisha Walker 3 Do Not Support Leslie Takahashi, Stephanie Medley 2 Oppose Todd Billeci, Venus Johnson, John Lowden, William Walker, Cardenas Shackelford, Harlan Grossman, Dennisha Marsh, Robin Lipetzky 8 Abstain Debra Mason 1 Discussion: Leslie Takahashi shared while she understands the Board may not have the jurisdiction to do this, it is important to identify the resources needed to make this recommendation happen. Result: Failed The County shall work with local enforcement agencies to seek funds that support the integration of de- escalation and behavioral health intervention trainings into local enforcement agency regional academy and/or department orientations. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed The County shall provide resources to incentivize local enforcement agencies to implement improved procedural justice practices and implicit bias training. i. Identify funding for procedural justice training utilizing the train the trainer model ii. Work with the Chief’s Association to create a forum to share information and strengthen promising practices around procedural justice and implicit bias trainings. Page 288 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | ix Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed In addition, local enforcement agencies in Contra Costa County shall: i. Ensure inclusion of de-escalation and behavioral health intervention trainings into local enforcement agency regional academy and/or department orientations ii. Provide procedural justice and implicit bias training to all staff Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed The County Office of Education shall provide resources to incentivize school districts to explore, evaluate, implement or expand existing non-punitive discipline practices, such as Positive Behavioral Interventions Support (PBIS) and Restorative Justice practices. i. Identify funding for continuous training and technical assistance to all schools in the County to support implementation of PBIS and Restorative Justice, as well as data collection to assess implementation and impact. Page 289 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | x Vote by Members Vote Members Total Support Bisa French, Leslie Takahashi, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 12 Do Not Support 0 Oppose 0 Abstain Todd Billeci, Venus Johnson 2 Result: Passed The County Office of Education shall work with school districts to provide supportive behavioral health services such as counseling, peer support, and early intervention services for youth presenting signs of emotional, mental, and/or behavioral distress. Vote by Members Vote Members Total Support Bisa French, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 13 Do Not Support 0 Oppose 0 Abstain Todd Billeci 1 Result: Passed In their review and approval of Local Control and Accountability Plans (LCAPs) and supplemental funding, the County Office of Education shall prioritize the following, as far as legally possible. a. Exploring and identifying programs that focus on faculty and staff trainings and their interactions with students. Such programs shall support developing strategies that address behavior issues to achieve positive outcomes such as My Teacher Partner Program (MTP). b. Requiring school districts to create partnerships with culturally specific organizations to routinely train faculty and staff on the issues facing communities of color. Page 290 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xi Vote by Members Vote Members Total Support Leslie Takahashi, , William Walker, Tamisha Walker, Stephanie Medley, Dennisha Marsh, Debra Mason, Robin Lipetzky 7 Do Not Support Marcus Walton, Cardenas Shackelford, Harlan Grossman 3 Oppose 0 Abstain Bisa French, Todd Billeci, Venus Johnson, John Lowden 4 Result: Failed Community Engagement and Services County criminal justice agencies shall establish formal partnerships with community-based organizations to provide greater capacity for i. diversion, ii. reentry programs, iii. alternatives to detention iv. pretrial services v. in custody programming All community-based organizations receiving funding from the County shall be evaluated for efficacy and effectiveness of program goals and objectives to ensure populations are appropriately served. Community input shall be an integral part of this process. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed Establish a community capacity fund to build the capacity of community-based organizations – especially those staffed by formerly incarcerated individuals – to provide services to reentry clients. Page 291 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xii Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, , Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 13 Do Not Support 0 Oppose 0 Abstain Tamisha Walker 1 Result: Passed The County and/or oversight body shall collaborate with the Community Corrections Partnership- Executive Committee (CCP-EC) to consider increasing realignment funding for community services. Vote by Members Vote Members Total Support Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 12 Do Not Support Todd Billeci 1 Oppose 0 Abstain Bisa French 1 Result: Passed Practices Related to Trial and Adjudication Processes Encourage the Superior Court to return to the process of jury selection whereby jurors are called to service to their local branch court for misdemeanor trials. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 14 Do Not Support 0 Oppose 0 Abstain 0 Result: Passed Page 292 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xiii Encourage the Superior Court to assign felony jury trials to the branch courts having jurisdiction over the location where the alleged offense occurred. Vote by Members Vote Members Total Support Leslie Takahashi, Venus Johnson, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Robin Lipetzky 5 Do Not Support John Lowden, Harlan Grossman, Dennisha Marsh, Debra Mason 4 Oppose 0 Abstain Bisa French, Todd Billeci, , Marcus Walton, William Walker, 5 Result: Failed Establish circumstances where DA won’t seek sentence enhancements. As a starting point, the DA’s Office shall not seek enhancements for any offenses in which defendants are eligible for Prop 47 relief. Vote by Members Vote Members Total Support Leslie Takahashi, William Walker, Tamisha Walker, Stephanie Medley, Dennisha Marsh, Debra Mason, Robin Lipetzky 7 Do Not Support John Lowden 1 Oppose 0 Abstain Bisa French, Todd Billeci, Venus Johnson, Marcus Walton, Cardenas Shackelford, Harlan Grossman 6 Discussion: Venus Johnson shared there is a caveat to this recommendation. She shared there are currently cases going through the justice system where the courts are deciding if Prop 47 applies to certain offense that may not have been specifically listed in the ballot initiative. . Depending on the results of those cases, charging decisions will be impacted. Venus shared she does not disagree with the recommendation, but due to the way it is written and the stance of the legal system, she will abstain. Result: Failed Page 293 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xiv Public Defender’s Office shall hire social workers who can assess clients’ psychosocial needs and link them to services. Vote by Members Vote Members Total Support Bisa French, Leslie Takahashi, Venus Johnson, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 12 Do Not Support 0 Oppose 0 Abstain Todd Billeci, John Lowden 2 Result: Passed The Public Defender’s Office, either directly or through partnerships with community-based organizations, shall offer civil legal representation to clients. For youth, this shall focus on educational advocacy Vote by Members Vote Members Total Support Bisa French, Leslie Takahashi, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Dennisha Marsh, Debra Mason, Robin Lipetzky 10 Do Not Support 0 Oppose Harlan Grossman 1 Abstain Todd Billeci, Venus Johnson, John Lowden 3 Discussion: Tamisha Walker shared the County does not currently provide enough funding for the Public Defender’s Office so she will support it. Stephanie Medley shared similar sentiments as Tamisha and shared the recommendation as it is written does not attach any resources to it or identifies any Result: Passed Page 294 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xv Confinement Expand eligibility for pre-trial services and increase pre-trial services staffing, with a focus on reducing racial disparities and replacing the money bail system. Vote by Members Vote Members Total Support Todd Billeci, Leslie Takahashi, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 13 Do Not Support 0 Oppose 0 Abstain Bisa French 1 Result: Passed Expand the current pre-release pilot to serve all individuals in custody. Vote by Members Vote Members Total Support Bisa French, Todd Billeci, Leslie Takahashi, Venus Johnson, , Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Robin Lipetzky 12 Do Not Support John Lowden, Debra Mason 2 Oppose 0 Abstain 0 Discussion: Todd Billeci clarified this recommendation pertains to a pre-release program not pre-trial Result: Passed Establish an independent grievance process for individual in custody on the County adult detention facilities to report concerns related to conditions of confinement based on gender, race, religion, and national origin. This process shall not operate via the Sheriff’s Office or require any review by Sheriff’s Office staff. Page 295 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xvi Vote by Members Vote Members Total Support Leslie Takahashi, Venus Johnson, , Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Robin Lipetzky 10 Do Not Support Todd Billeci, Debra Mason 2 Oppose John Lowden 1 Abstain Bisa French 1 Discussion: Debra Mason shared she does not support the recommendation if it requires the elimination of the Sherriff’s current process. She shared she believes there should be an additional step to process any complains if one is not satisfied with the Sherriff’s process. Result: Passed Establish an independent monitoring body to oversee conditions of confinement in County adult detention facilities based on gender, race, religion, and national origin and report back to the Board of Supervisors. Vote by Members Vote Members Total Support Bisa French, Leslie Takahashi, Venus Johnson, , Marcus Walton, William Walker, , Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 11 Do Not Support 0 Oppose Todd Billeci, John Lowden 2 Abstain Cardenas Shackelford 1 Discussion: Todd Billeci shared that even though he opposes this recommendation, he appreciates the engagement and involvement of the community throughout this process. Result: Passed IT SHOULD BE NOTED THAT AFTER FULL CONSIDERATION OF THE MATTER AT ITS JULY 24, 2018, MEETING, RECOMMENDATION #21 WAS NOT ADOPTED BY THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS IT SHOULD BE NOTED THAT AFTER FULL CONSIDERATION OF THE MATTER AT ITS JULY 24, 2018, MEETING, RECOMMENDATION #22 WAS NOT ADOPTED BY THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS RECOMMENDATIONS #21 AND #22, ABOVE, HAVE BEEN REFERRED TO THE PUBLIC PROTECTION COMMITTEE FOR ADDITIONAL INPUT FROM THE SHERIFF AND RACIAL JUSTICE TASK FORCE PRIOR TO FUTURE CONSIDERATION BY THE BOARD Page 296 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xvii Added Recommendation All County staff shall participate and complete implicit bias training. Vote by Members Vote Members Total Support Bisa French, Venus Johnson, John Lowden, Marcus Walton, William Walker, Cardenas Shackelford, Tamisha Walker, Stephanie Medley, Harlan Grossman, Dennisha Marsh, Debra Mason, Robin Lipetzky 12 Do Not Support 0 Oppose 0 Abstain Todd Billeci, Leslie Takahashi 2 Discussion: Todd shared that he will abstain because he has heard that recent studies indicate that implicit bias training may cause more harm than good. Result: Passed Page 297 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xviii Appendix B: Data reviewed by RJTF This appendix includes a summary of all quantitative data obtained and reviewed by the RJTF. As noted in the project Findings above, data were obtained from a variety of sources, including the State of California Department of Justice (DOJ), the Contra Costa County Probation Department, the Contra Costa County Superior Court, the Contra Costa County Sheriff’s Office, and the Contra Costa County Racial Justice Coalition. Because different data are available from different sources at different points in time, these data span from 2013 through 2017. Local Law Enforcement Data All data provided below are from the State of California DOJ Criminal Justice Statistics Center (CJSC). Data are from 2014, unless otherwise indicated. Figure 1. Contra Costa County, Adult Arrests per 1,000 Figure . Illustrates countywide arrest trends among Black, Latino, White and Other adults. Black adults are 6 times more likely than White adults to be arrested for a violent offense, as well as 5 times more likely to be arrested for a property crime and over 2 times as likely to be arrested for a drug offense. 18 20 17 2 5 5 7 0 3 4 7 0 2 2 2 0 0 5 10 15 20 25 Violent Property Drug SexArrest Rate Black Latino White Other Page 298 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xix 6% 12% 51% 31% Total Population: 24, 136 Black Hispanic White Other 80 177 14 40 3 86 16 0 20 40 60 80 100 120 140 160 180 200 Felony MisdemeanorArrest Rate Figure 2. Contra Costa County, Juvenile Arrests per 1,000 Figure 2. illustrates countywide arrest trends among Black, Latino, White and Other youth. Black youth are 12 times more likely to be arrested for a violent crime than White youth, while they are 7 times more likely to be arrested for a property offense and twice as likely to be arrested for a drug offense than White youth. A greater disparity among arrests rates by race exists within youth as compared to adults. While these graphs are city specific data, they are examples of a larger trend across most cities in Contra Costa County. Figure 3. El Cerrito Population Figure 4. El Cerrito Adult Arrest Rates per 1,000 Figure 3. represents a breakdown of El Cerrito’s total population, which is relatively a small population. Of El Cerrito’s total population, 6% are black. Figure 4. shows that Black individuals are approximately 13 times as likely as White individuals to be arrested for a felony and approximately 11 times more likely to be arrested for a misdemeanor. 12 7 2 1111 0111 0000 0 0 5 10 15 20 25 Violent Property Drug SexArrest RateBlack Latino White Other Page 299 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xx Figure 5. Richmond City Population Figure 6. Richmond Adult Arrests Rate per 1,000 Figure 5. represents a breakdown of Richmond’s total population, which is a much larger city with a larger black population (23%) than El Cerrito. While the racial disparities are not as great as those in El Cerrito or smaller cities, disparities remain. As seen in Figure 6, Black adults are approximately 4.5 times as likely as White adults to be arrested for a felony and approximately 4 times as likely to be arrested for a misdemeanor. While these graphs are city specific data, they are examples of a larger trend across most cities in Contra Costa County. Figure 7. City of El Cerrito, Adults Arrest Rates per 1,000 As Figure 7. illustrates, disparities are greatest for property offenses in El Cerrito where Black adults are approximately 18 times as likely as White adults to be arrested for a property offense. 23% 41% 17% 19% Total Population: 106,469 Black Latino White Other 37 2011 102 38 5 0 20 40 60 80 100 120 140 160 180 200 Felony MisdemeanorArrest Rate26 72 33 13 14 7 0244 0221 0 0 20 40 60 80 Violent Property Drug SexArrest RateBlack Latino White Other Page 300 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxi Figure 8. City of Antioch, Adult Arrest Rates per 1,000 As seen in Figure 8., disparities are greatest for violent offenses in Antioch where Black adults are 4 times more likely than White adults to be arrested for a violent offense compared to only 1.5 times more likely to be arrested for a property or drug offense respectively. Figure 9. Contra Costa County, Felony Arrest Rates per 1,000 Figure 9. illustrates countywide data in which compared to White adults, Black adults are approximately 5 times more likely to be arrested for a felony while Black youth are 11 times more likely to be arrested than White youth. 24 14 14 1689 0 0 20 40 60 80 Violent Property Drug SexArrest Rate Black Latino White Other 50 1114 2 11 14 1 0 10 20 30 40 50 60 Adult JuvenileArrest RateBlack Latino White Other Page 301 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxii Figure 10. Contra Costa County, Misdemeanor Arrest Rates per 1,000 Figure 10. illustrates countywide data in which compared to White adults, Black adults are 3 times more likely to be arrested for a misdemeanor while Black youth are approximately 6 times more likely to be arrested. Figure 11. City of Richmond, Juvenile Arrest Rates per 1,000 As seen in Figure 11, disparities are greatest for violent offenses in Richmond where Black youth are 7 times more likely to be arrested for a violent offense than White or Latino youth. 39 1916 3 13 36 1 0 10 20 30 40 50 60 Adult JuvenileArrest RateBlack Latino White Other 7 2 0 1111 0 1 0 0 0 1 1 1 0 0 2 4 6 8 10 12 Violent Property Drug SexArrest RateBlack Latino Other White Page 302 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxiii Figure 12. City of Pittsburg, Juvenile Arrest Rates per 1,000 As seen in Figure 12, disparities are greatest for property offenses in Pittsburg where Black youth are 3 times more likely to be arrested for a property offense than White or Latino youth. None of the following law enforcement agencies collect race-specific data on diversion practices:  Richmond PD partners with RYSE to divert youth from official processing.  Antioch PD partners with Reach to divert youth from official processing.  Pittsburg and Concord PD have implemented the community court model to divert some adult and juvenile cases from formal processing. 4 3 1 0 2 1 1 00 1 0 0 1 0 2 0 0 2 4 6 8 10 12 Violent Property Drug SexArrest Rate Black Latino Other White Page 303 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxiv 9.7 6.2 88.5 68.4 14.7 13.0 0 20 40 60 80 100 2013 2014 9x 11x White Black Latino Juvenile Justice Data All data provided below are from the Contra Costa County Probation Department. Data are from 2013 and 2014. Figure 13. Rated of Referral to Probation per 1,000 Figure 14. Referrals to Probation RRI, youth, by Race by Race Figure and Figure 13. Rated of Referral to Probation per 1,000 Figure 14. Referrals to Probation RRI, illustrate overall, in 2013 and 2014, Black youth were 9 times more likely than White youth and 6 times more likely than Latino youth to be referred to Probation. 1.0 1.0 9.1 11.1 1.5 2.1 0 2 4 6 8 10 12 2013 2014 2.3 1.3 32.8 21.0 5.4 4.2 0 10 20 30 40 2013 2014 14x 16x 1.0 1.0 1.5 1.51.5 1.5 0 1 2 3 4 2013 2014 White Black Latino Figure 15. Pre-Adjudication Detention Rates per 1,000 Youth, by Race Figure 16. Pre-Adjudication Detention RRI, by Race Page 304 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxv As seen in Figure and Figure 16, of all youth referred to Probation, Black and Latino youth are 50% more likely than White youth to be detained prior to adjudication. Figures 17 and 18 show that the Probation Department filed petitions at the same rate for all referred youth regardless of race; however, relative to their proportion of the overall county population, Black youth were 10 times more likely to have petitions filed than all other groups. 5.2 3.3 56.9 36.2 9.6 7.0 0 10 20 30 40 50 60 2013 2014 10x 10x 1.0 1.01.2 1.01.2 1.0 0 1 2 3 4 2013 2014 White Black Latino 4.3 2.5 44.5 26.0 8.5 5.8 0 10 20 30 40 50 2013 2014 11x 11x 1.0 1.01.0 0.91.1 1.1 0 1 2 3 4 2013 2014 White Black Latino Figure 17. Pre-Adjudication Detention RRI, by Race Figure 18. Pre-Adjudication Detention Rates per 1,000 Youth, by Race Figure 19. Rates of Petitions Filed per 1,000 youth by Race Figure 20. Petitions Filed RRI, by Race Page 305 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxvi White Black Latino Among youth who had petitions filed, there were not disparities in who was deemed to be a ward of the court. There were still disparities compared to the overall rate within the population. As Figures 21 and 22 illustrate, among youth who were adjudicated delinquent, there were no disparities in which youth received a disposition of placement. There were still disparities compared to the overall rate within the population. 0.7 0.2 10.5 6.0 2.3 1.7 0 2 4 6 8 10 12 2013 2014 16x 24x 1.0 1.0 1.5 2.3 1.8 3.0 0 1 2 3 4 2013 2014 White Black Latino Figure 23. Placement Rates per 1,000 Youth, by Race Figure 24. Placement RRI, by Race Figure 21. Ward of the Court Rates per 1,000 by Race 3.3 2.0 32.4 18.7 6.1 4.1 0 10 20 30 40 2013 2014 10x 9x 1.0 1.01.0 0.90.9 0.9 0 1 2 3 4 2013 2014 Figure 22. Ward of the Court RRI, by Race Page 306 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxvii Among all youth who were made a ward of the court, Latino youth were 3 times more likely to be placed in secure confinement compared to White youth and Black youth were 2 times more likely to be placed in secure confinement compared to White youth. Page 307 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxviii 11 50 14 0 10 20 30 40 50 60 Felony White Black Latino 13 39 16 0 10 20 30 40 50 60 Misdemeanor Criminal Justice Data Data provided below are from the California DOJ CSJC, Contra Costa County Superior Court, and Contra Costa Sheriff’s Office. Data are from 2014-2017. Specific data sources and dates are provided below. As Figure 25 illustrates, Black adults were three times more likely to be arrested for a misdemeanor compare to Whites. Similarly, Figure 26 shows Black adults were four times more likely to be arrested for a felony than White adults. White Black Latino 20.4 19.8 108.8 111.7 34.3 35.1 0 20 40 60 80 100 120 140 160 2016 2017 5.3x 5.6x 50.1 48.8 146.0 140.6 76.2 74.9 0 20 40 60 80 100 120 140 160 2016 2017 2.9x 2.8x *Data from Contra Costa County Criminal Court *Data from across all cities in Contra Costa County from California DOJ CSJC Figure 28. Felony Case Filing Rates, by Race* 3x 5x Figure 25. Misdemeanor Arrest Rates, by Race* Figure 26. Felony Arrest Rates, by Race* Figure 27. Misdemeanor Case Filing Rates, by Race* Page 308 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxix 516 564 404 532 341 381 144 134 100 92 78 102 432 530 372 397 284 309 438 679 175 267 304 474 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Detention Non-detention- Bail Non-detention- OR Non-detention- Letter to appear 2016 2017 2016 2017 2016 White Black Latino Figure 27 shows how in both 2016 and 2017, Black adults were approximately three times more likely to have a misdemeanor case filing than their White counterparts. Similarly, as shown in Figure 28, Black adults were more than five times more likely to have a felony case filing than White adults. As Figure 29 illustrates, in 2015, Black adults were approximately 7 times more likely to be detained pre- trial than White adults. Figure 30 shows in both 2016 and 2017, Black adults were more likely to be detained as compared to White adults who have higher rates of non-detention OR and letter to appear. Black adults are also significantly less likely to be given a letter to appear than both White and Latino adults. 10.1 69.8 25.2 0 10 20 30 40 50 60 70 80 2015 6.9x Figure 29. Pre-Trial Detention Rates, by Race* Figure 30. Pre-Trial Detention versus Non-Detention, by Race* *Data is a snapshot of detained population on 7/9/2015 Contra Costa County Sheriff’s Office *Data from Contra Costa County Criminal Court Page 309 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxx 17% 23%22% 28%28%31% 0% 20% 40% 60% 80% 100% 2014 2015 46%42% 52%50% 35%37% 0% 20% 40% 60% 80% 100% 2014 2015 White Black Latino Figure 31 shows in both 2014 and 2015, Latino adults had the highest proportion of cases with charge enhancements. Figure 32 shows both in 2014 and 2015, Black adults had the highest proportion of cases with person enhancements, followed by White adults. 14.8 15.4 79.0 85.5 25.3 27.3 0 20 40 60 80 100 120 140 160 180 2016 2017 5.3x 5.5x 54.6 52.7 168.8 164.4 83.8 81.9 0 20 40 60 80 100 120 140 160 180 2016 2017 3.1x 3.1x White Black Latino Figure 31. Proportion of Cases with Charge Enhancements, by Race* Figure 32. Proportion of Cases with Person Enhancements, by Race* Figure 33. Misdemeanor Conviction Rates, by Race* Figure 34. Felony Conviction Rates, by Race* *Data from Contra Costa County Criminal Court *Data from the Public Defender’s Office Page 310 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxxi Figure 33 shows Black adults were three times more likely to have a misdemeanor conviction than White adults. Figure 34 shows Black adults were more than five times as likely to get a felony conviction than White adults in 2016 and 2017. Page 311 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxxii Appendix C. Community Forums The Racial Justice Task Force hosted two rounds of community forums throughout Contra Costa County. The goal of each community forum was to engage community members with the project and gather community input and feedback on the projects’ areas of focus and set of draft recommendations. The first round of community forums took place in November and consisted of five community forums in the cities of Concord, Danville, Pittsburg, Richmond, and Antioch. The focus of the first round of community forums was to share the purpose of the Racial Justice Task Force and share work to date. Community members also had the opportunity to provide input towards the project’s areas of focus. Table 1. Attendees per Location Location Number of Public Attendees Concord 32 Danville 35 Pittsburg 34 Richmond 28 Antioch 25 The Racial Justice Coalition, District Attorney, Board of Supervisors, School Board, Teachers, Public Defender, faith-based organizations, and Local Law Enforcement were some of the stakeholders in attendance. Figure 35. November Community Forums Key Themes Impact of Historical Trauma •Lack of cultural competence/ awareness in schools and justice system agencies •Restorative justice •Need for increased mental health services Implicit & Explicit Bias •Need for cultural responsive implicit bias training for all justice stakeholders School to Prison Pipeline •Role of schools pushing youth of color into the justice system •Youth development Mistrust of Law Enforcement •Sherriff's Office's relationship to ICE County Processes •Expand and standardize diversion programs, policies, and procedures. •Standardize data collection across the county •Reform bail cash system Page 312 of 363 Contra Costa County Racial Justice Task Force – Final Report and Recommendations June 2018 | xxxiii Following the first round of community forums, the Racial Justice Task Force analyzed community input and integrated feedback into areas of focus. After a series of discussions of best practices, current practices, and analysis of racial disparities in the county, the Racial Justice Task Force drafted a set of preliminary recommendations for the Board of Supervisors. The purpose of the second round of community forums was to share the set of preliminary set of recommendations and solicit feedback for any revisions, additions, or removals of drafted recommendations. Table 2. Attendees per Location Location Number of Public Attendees Walnut Creek 59 Antioch 24 Richmond 28 The Racial Justice Coalition, District Attorney, Board of Supervisors, School Board, Teachers, Public Defender, Behavioral Health, community-based organizations, faith-based organizations, Local Law Enforcement, and residents were some of the stakeholders in attendance. Figure 36. May Community Forums Key Themes Highest Priorities •Expand diversion and criteria •Establish sliding scale fees/ fee waivers for pre-trial and diversion programs •Develop data collection and accountability measures •Establish oversight committee for implementation process that includes community members •Ensure recommendation planning process includes community input Key Concerns •Avaialble funding and budget prioritization for recommendations •Misuse of publically avaialble data •Buy-in from implementin partners such as education •Language accessibility for programs/ services Gaps •Use of force policies and police engaged violence •Police disclosure and monitoring of police misconduct •Body cameras for law enforcement •Recruitment and retention of school staff that are reflective of communities they serve •Community centered services that prevent any contact with the justice system •Staffing and racial disparities in various policing agencies Page 313 of 363 Page 314 of 363 Page 315 of 363 Page 316 of 363 Page 317 of 363 Page 318 of 363 Page 319 of 363 ATTACHMENT I ~o~ro of ~County of Los Angeles CHIEF EXECUTIVE OFFICE Kenneth Hahn Hall of Administration ~Di.~t~t —500 West Temple Street.RGom 713,Los An~ele.s,Cahfornia 90012 (213)~78-110i ZEV~YAROS~V~kY http:llcao.lacounty.~ov T..ffd D~r~t \MLLIAM T FUJIOKA Dh~f E ~ifiv~om~To Enrich Lives Through Effective And Caring Servce~ ~9CH?~EL D~ANTONDVIDH Fift~D~trot August 05,2014 ADOPTED The Honorable Board of Supervisors COUNTY OF LOS ANGELES County of Los Angeles 383 Kenneth Hahn Hall of Administration 11 August 5,2014 500 West Temple Street 4 Los Angeles,California 90012 a;~’4’-~ SACHI A.HAMAI Dear Supervisors:EXECUTIVE OFFICER ESTABLISHMENT OF THE OFFICE OF INSPECTOR GENERAL ALL DISTRICTS (3 VOTES) SUBJECT Establish the Office of Inspector General to provide independent and comprehensive oversight, monitoring of,and reporting about the Sheriff’s Department and its jail facilities. IT IS RECOMMENDED THAT THE BOARD: 1.Adopt the accompanying ordinance outlining the scope of authority and responsibilities of the Office of Inspector General and the dissolution of the Ombudsman (Attachment I). 2.Approve interim ordinance authority for a total of 37 new positions, including 28 positions for the Office of Inspector General and nine new administrative support positions within the Executive Office,pending allocation by the Chief Executive Office Classification and Administration (Attachment II).Eight of these positions will be frozen pending additional Board action. PURPOSEIJUSTIFICATION OF RECOMMENDED ACTION In October2011,the Board authorized the creation of the Citizens’Commission on Jail Violence (CCJV)to conduct a review of the nature, depth,and cause of the allegations of inappropriate use of force by deputies in the jails and to recommend corrective action as necessary.On September 28, 2012, the CCJV released its report with 63 recommendations. On October 2,2012,the Board directed the Chief Executive Office (CEO)to conduct a fiscal analysis Page 320 of 363 The Honorable Board of Supervisors 8/5/2014 Page2 of the recommendations made by the CCJV,including the creation of an independent Office of Inspector General (OlG).In consultation with the CCJV Implementation Monitor (Monitor)and the Board’s Consultants (Consultants),we prepared a draft organizational structure which identified functional units,an operational model,and position classifications.The newly appointed Inspector General has provided a revised organizational structure. The Monitor has reviewed the proposal and determined that it meets the CCJV’s recommendation to establish an independent OIG to monitor the Sheriffs Department (Department). Implementation of Strategic Plan Goals Establishing the OIG will support the County Strategic Plan Goal 3:Integrated Services Delivery — Maximize opportunities to measurably improve client and community outcomes and leverage resources through the continuous integration of health,community,and public safety services. Strategic Initiative 3:Implementing Jail Reform —Continue the Sheriff’s implementation and the Board’s monitoring of all 63 recommendations of the CCJV,to improve conditions in the County’s jails. FISCAL IMPACTIFINANCING The OIG will be funded through the Executive Office of the Board of Supervisors (Executive Office) budget. In Fiscal Year (FY)2013-14 Recommended Budget,$5,000,000 in funding was set aside in Provisional Financing Uses (PFU)for the 01G.On June 23,2014, the Board approved the transfer of $1 ,000,000 from PFU to the Executive Office to offset OIG costs incurred during the year.In Supplemental Changes, we will recommend $2,500,000 be carried over to FY 2014-15 for continued start-up and contingency costs. The remaining FY 2013-14 PFU balance of $1,500,000 will revert to the General Fund. The OIG is requesting 37 additional positions and $7,225,000 in ongoing funding.The CEO will recommend the transfer of $5,000,000 from PFU to the Executive Office during Supplemental Changes to partially fund the 01G.This funding will support 29 of the 37 positions requested by the 01G.The remaining eight positions will be frozen until a detailed analysis of the OIG activities and accomplishments are provided to the Board. During Supplemental Changes,$2,225,000 in funding will be transferred from the Sheriff and Community and Senior Services (CSS)Departments to PFU due to the termination of the Office of Independent Review (OIR)and Special Counsel contracts,as well as the dissolution of the Ombudsman.Funding will remain in PFU until Board approval, which is subject to the Inspector General providing a report to the Board outlining the OIG activities,accomplishments,and performance milestones achieved no later than December 31,2014. The OIG financing proposal is detailed in Attachment III. FACTS AND PROVISIONSILEGAL REQUIREMENTS The CCJV recommended the creation of an OIG with the objective of providing independent and comprehensive monitoring of the Department and restoring the public’s confidence in the Department. Page 321 of 363 The Honorable Board of Supervisors 8/5/2014 Page 3 Pursuant to Government Code section 25303,the Board has the statutory duty to supervise the official conduct of all County officers. The accompanying ordinance establishes the Inspector General as special counsel to the Board with responsibility for the independent and comprehensive oversight,monitoring of,and reporting about the Department and its jail facilities.The OIG is created to facilitate the Board’s responsibility without interfering with the Department’s investigative functions. The Inspector General shall report directly to,and serve as an agent of,the Board and shall make regular reports to the Board on the Department’s operations.Such reports shall be public reports, except to the extent they relate to confidential personnel or otherwise privileged matters.The Inspector General shall have an attorney-client relationship with the Board when requested by the Board to provide privileged legal advice pertaining to a claim or lawsuit arising out of the actions of the Department or its personnel. Under the Board’s auspices and with the cooperation of the Department,the OlG will: •Monitor the Department’s operations,conditions in the jail facilities,and the Department’s response to inmate and public complaints related to the Department’s operations. •Periodically review the Department’s use of force patterns,trends,and statistics; investigations of force incidents and allegations of misconduct;and disciplinary decisions. •Review the quality of audits and inspections conducted by the Department and conduct its own periodic audits and inspections. •Regularly communicate with the public,the Board,and the Department regarding the Department’s operations. •Without interfering with the Department’s investigative functions, investigate specific incidents involving Department personnel in certain limited circumstances. •Safeguard and maintain the confidentiality of any peace officer’s personnel records and all other privileged or confidential information received by the OIG as required by law or as necessary to maintain any applicable privileges or the confidentiality of the information. The Sheriff maintains constitutional and statutory responsibility with respect to Department operations,policies,imposition of staff discipline,and the allocation of resources.The Sheriff has reviewed the ordinance and recommends the attorney-client privilege be extended to his Department. The Monitor and Consultants have reviewed the ordinance,organizational structure,and operational model and concur that it will satisfy the CCJV’s recommendation to establish an 01G.They also concur with County Counsel that the attorney-client privilege should be limited to the Board of Supervisors, pursuant to the CCJV recommendations. The Executive Office has identified and confirmed the resources necessary to support the 01G. CEO Real Estate Division has identified office space;Asset Planning and Strategy approved the Space Request/Evaluation;and both have coordinated program requirements with the Executive Office. Page 322 of 363 The Honorable Board of Supervisors 8/5/2014 Page 4 CSS’Office of Ombudsman will be dissolved upon adoption of the attached ordinance.The Department of Human Resources (DHR)is assisting in developing a Workforce Reduction Plan in accordance with applicable Civil Service Rules. The Chief Information Office has been consulted regarding the information technology resources required by the 01G. The accompanying ordinance implementing an amendment to Title 2 -Administration and Title 6 - Salaries of the County Code has been approved as to form by County Counsel. IMPACT ON CURRENT SERVICES (OR PROJECTS) Existing Monitoring Structure Investigatory monitoring of the Department has been performed through service contracts with Special Counsel Merrick Bobb (Special Counsel),who conducts macro-level policy review,and the Office of Independent Review (OIR),which conducts micro-level investigations such as significant use of force incidents.In addition,the CSS Ombudsman reviews public and inmate complaints against the Department.Although each monitoring entity functions effectively within its mandated responsibilities,the CCJV raised the following concerns with the current monitoring structure: •Limitations within their respective scopes of responsibility; •Critical gaps in identifying problematic patterns,trends and tactical issues,and continuing problems in the Department; •Despite the identification and public reporting of recurrent critical issues,there has been limited sustained follow up on the Department’s progress to implement reform recommendations;and •“..outside projects raise concerns regarding OIR’s [and Special Counsel’s]ability to devote its full time and attention to comprehensive oversight of the Department and its jail facilities.” Consolidation of Monitoring Responsibilities In order to address the aforementioned concerns and provide more robust monitoring of the Department,the CCJV recommended consolidation of the functions of Special Counsel,OIR,and CSS Ombudsman under a single 01G. Proposed Organizational Structure The recommended OIG organizational structure is based on consultations with the Inspector General,the Monitor,and Consultants (Attachment IV).The proposal places the OIG within the Executive Office to ensure responsiveness to the Board and organizational independence from the Department. The Executive Office will provide the OIG with administrative support services such as human resources,budget/fiscal/procurement services, information systems,etc.This will allow the County to leverage its existing infrastructure instead of having to build a separate administrative unit fortheOlG. The OIG has developed an operational model utilizing three functional units that will have department-wide responsibility: Page 323 of 363 The Honorable Board of Supervisors 8/5/2014 PageS •Review and Analysis -A team of attorneys and inspectors will analyze and review data for the production of reports and the identification of trends.The team will also have responsibility for the real-time monitoring of disciplinary activity in coordination with the Audits and Investigations Unit. This unit will assume some of the functions of the OIR and Special Counsel. •Audits and Investigations -A team of inspectors will audit the Departments compliance with policy and procedures, including the quality of its internal audits and inspections reports. This unit also will assume some of the functions of Special Counsel. •Monitoring and Community Outreach -A team of community liaisons and inspectors will monitor conditions within the jail facilities,the Department’s responses to complaints from inmates and the public,and take input from the public.This unit will assume the functions of the CSS Ombudsman. The Inspector General and Chief Deputy will be responsible for ensuring ongoing internal communications between the functional units and identify problematic patterns, trends and tactical issues,and continuing problems within the Department. Dissolution of the CSS Ombudsman The functions of the CSS Ombudsman will be assumed by the 01G.CSS will work with DHR to develop a Workforce Reduction Plan in accordance with applicable Civil Service Rules. OIR Monitoring of Probation Department In addition to the Department,the OIR also monitors the Probation Department.The continuation of OIR oversight of the Probation Department has been addressed in a separate Board letter. CONCLUSION The accompanying ordinance, organizational structure,operational model,and budget provide the resources necessary to establish the 01G. Page 324 of 363 The Honorable Board of Supervisors 8/5/2014 Page 6 Respectfully submitted, Chief Executive Officer WTF:GAM:SW DT:llm Enclosures c:Executive Office, Board of Supervisors County Counsel Sheriff Chief Information Office Community and Senior Services Human Resources Probation WILLIAM T FUJIOKA Page 325 of 363 ATTACHMENT II REQUEST FOR INTERIM ORDINANCE AUTHORITY PROVISIONAL ALLOCATION FOR THE BOARD OF SUPERVISORS FISCAL YEAR 2014-2015 OFFICE OF INSPECTOR GENERAL Budgeted Frozen Total Classification (corresponding working title)Positions Positions Positions Inspector General (UC)(#9973)1 1 Chief Deputy Inspector General (UC) (#9975)1 1 Assistant Inspector General (UC)(#9974)3 3 Deputy Inspector General (#1 651)4 1 5 Inspector,DIG (#1 650)4 2 6 (Inspector II) Investigator II (#2915)2 2 4 (Inspector!) Paralegal (#9232)1 1 (Special Assistant) Administrative Services Manager I (#1 002)0 1 1 (Statistician) Senior Management Secretary III (#2116)1 1 (Secretary to Inspector General) Management Secretary III (#21 09)3 3 (Secretaries to Assistant Inspector Generals) Senior Board Specialist (#1100)1 1 2 (Community Liaison) Total 21.0 7.0 28.0 EXECUTIVE OFFICE Budgeted Frozen Total Classification Positions Positions Positions Senior IT Technical Support Analyst (#2547)1 1 Principal Application Developer (#2526)1 1 Principal Network Systems Administrator (#2561)1 1 Database Administrator (#2620)1 1 Management Analyst (#1848)1 1 Senior Board Specialist (#1100)1 1 Intermediate Board Specialist (#1 099)1 1 Administrative Services Manager II (#1003)0 1 1 Head Board Specialist (#1108)1 1 Total 8.0 1.0 9.0 TOTAL POSITIONS REQUESTED 29.0 8.0 37.0 Page 326 of 363 ATTACHMENT III OFFICE OF THE INSPECTOR GENERAL:FINANCING PROPOSAL FY2013-14 FY2014-15 FY2014-15+(Initial Funding)(Full Funding) Pre-OIG Sheriff Monitoring Cost Ombudsman (funded by Community &Senior Services)$641 000 $0 $0 Special Counsel (funded by Judgments &Damages budget)$334,000 $0 $0 Office of Independent Review (funded bySherifVs Department)$1,194,000 $0 $0 Total Pre-OIG Monitoring Cost $2,169,000 $0 $0 RECOMMENDED MONITORING OFFICE OF THE INSPECTOR GENERAL $1,000,000 $5,000,000 $7,225,000 OIG Funding by Permanently Transferring Net County Cost From: Provisional Financing Uses $1,000,000 $5,000,000 $5,000,000 ($5M was set aside during 2013-14 Recommended Budget) Dissolution of Ombudsman (reflects COLAs)$0 $0 $697,000 Expiration of Special Counsel Contract*$0 $0 $334,000 Expiration of Office of Independent Review Contract $0 $0 $1,194,000 Total NCC Transfer $1,000,000 $5,000,000 $7,225,000 *Following the transition of responsibilities to the OIG,the Inspector General may recommend a special projects contract for as-needed services. Page 327 of 363 ATTACHMENT IV OFFICE OF THE INSPECTOR GENERAL Organizational Structure Assistant Inspector General Secretary Inspector II — Inspector II — Oep~y inspector ~ (Attorney) Deputy Inspector Deputy Inspector General —h General (Attorney)(Attorney) Deputy Inspector’J Deputy Inspector General +General ~Attarney)f (Attorney) Secretary —Inspector II *Inspector II Assistant Inspector General Secretary Community Liaison Community Liaison ~_~spectorI Inspectorl J Inspector I Ci i-i~~ Assistant Inspector General r DIG 28 Staff EXECUTIVE OFFICE ————9-Support Staff 5-Management S—Attorneys 10—Inspectors 2—Community Liaison [~~Admin Support ESTIMATED ANNUAL COST:$7,225,000 OIG Organizational Chart.TURLA.vsd 7/28/2014 10:53 AMPage 328 of 363 ATTACHMENT 2 WORK PLAN SUMMARY This is an outline of the Office of Inspector General’s work plan for the fiscal year starting July 1, 2016.This is not dissimilar from the OIG’s 2015-2016 work plan.However,the OIG was not able to fully implement the work plan throughout the entirety of the year due to some restrictions placed on the OIG’s access to Los Angeles County Sheriff’s Department infonnation.With the December 2015 Memorandum of Agreement to Share and Protect Confidential LASD Information,those access issues have been removed. The following work plan shows a +next to the objectives which can only be partially fulfilled without full access.An *marks objectives which cannot not be fulfilled without full access.All of these items can be fulfilled with the current access the OIG has to LASD information. FORCE o Monitor revisions to the Use of Force manual o Monitor the Department’s adherence to its preference for planned,supervised and directed force+ o Monitor Department’s use of force training and its use of situational use of force options chart o Monitor effectiveness of and compliance with Manual of Policies and Procedures mandates for the investigations of all force incidents+ o Monitor adherence to Force Prevention,Anti-retaliation,and Anti-harassment policies+ o Monitor force prevention practices with special needs prisoners+ o Monitor use of force review tracking mechanisms o Monitor senior management involvement in tracking and force+ o Monitor adherence to enhanced discipline guidelines for force* o Respond along with Internal Affairs to the scene of deputy involved shootings and in custody deaths and monitor the investigation through to resolution+ o Monitor adherence to no huddling policy in force investigations+ CUSTODY o Monitor facilities and conditions of confinement at all jails+ o Monitor deliver of medical and mental health services to prisoners+ o Monitor provision of religious,educational,and therapeutic programming to prisoners o Monitor access of disabled prisoners to programs and activities o Monitor specialized training of custody personnel+ o Monitor Deputy/Custody Assistant/Security Assistant ratios o Monitor sworn and civilian staffmg patterns o Monitor settlement agreement implementation+ o Monitor department’s emphasis on respect,engagement of and communication with prisoners o Examine consistency of prisoner discipline within and among the custody facilities o Monitor department’s compliance with Prison Rape Elimination Act,CCR Title 15, Americans with Disabilities Act.+ Page 329 of 363 o Monitor personnel compliance with the Manual of Policy and Procedures and Custody Division Manual* o Monitor and evaluate the department’s Mandatory Rotation of Line Personnel policy+ o Monitor Sheriff’s personal engagement in custody oversight o Monitor processing of prisoner grievances and tracking by employee identity* o Monitor effectiveness of prisoner grievance system+ o Monitor senior management engagement and visibility in jail facilities o Monitor CFRC, SCIF,and CFRT,processes* o Monitor department’s administrative segregation and disciplinary practices o Monitor department’s adherence to national standards for custodial best practices AUDITS o Conduct routine audits of use of force statistics to detect patterns and trends+ o Review audits conducted by Department’s Audits and Accountability Bureau+ •Seven pending from calendar 2015 •Eighteen scheduled for calendar 2016 o Audit and investigate issues brought to light as result of monitoring activities+ DEPARTMENT OPERATIONS o Monitor stations,bureaus,units and commands+ •Service comment reports+ •Response times •Citations •Arrests •Filings •Crime classification •Personnel issues and grievances* o Review hiring standards and monitor hiring practices to ensure compliance+ o Review staffmg patterns and mandatory overtime+ o Monitor department’s community engagement efforts o Review academy and Department wide training curriculum and monitor training+ o Monitor and review evaluation of employees during probationary period* o Review and monitor disciplinary practices,including enhanced discipline for dishonesty/force* o Review and monitor investigations of employee misconduct and clique formation* o Review and monitor effectiveness of Department data collection and tracking systems o Review and monitor patterns in and Department response to complaints+ o Review and monitor implementation and effectiveness of dual track career path* o Monitor department’s community oriented policing policies and practices o Review application of policy standards for consistency and clarity+ o Review patterns and trends in criminal conduct by employees+ o Review patterns and trends in policy violations by employees* Page 330 of 363 PROJECTS (these are temporary endeavors with a start and a fmish which focus on areas of particular concern,such as “Recommendation to the Los Angeles County Sheriffs Department for Public Data Disclosure”and “Body-Worn Cameras:Policy Recommendations and Review of LASD’s Pilot Program.”)Currently there are eleven in progress or in the development stages.+ REPORTS (these are reports prepared in response to specific requests from the Board of Supervisors,such as “A Preliminary Review of Sheriff Crime Statistic Reporting,”“Analysis of the Legal Basis for X-Ray Body Scanner Searches in County Jail”and other reports prepared pursuant to Code section 6.44.1 90(E).)+ TASKS ENABLED BY ACCESS Receive and review Watch Commander’s Service Comment Report’s and monitor how handled. Receive and review Custody Division Chiefs’Memoranda. Receive and review inmate grievances and monitor how handled. Receive and review personnel grievances and monitor how handled. Review use of force investigations and monitor how handled. Review misconduct investigations and monitor how handled. Review and analyze Department responses to claims and lawsuits. Review and analyze Internal Affairs Bureau investigations. Review and analyze Internal Criminal Investigation Bureau investigations. Monitor,review and analyze investigations of deputy involved shootings and in custody deaths (the OIG responds to the scene of these and can now follow the entire course of these cases). Be present during,and review and analyze: o Critical Incident Review o Custody Force Response Team rollouts o Custody Force Review Committee o Executive Force Review Committee o Case Review o Shooting Review o Sheriffs Critical Incident Forum/Risk Management Forum o Death Review o Over Detention o Strategic Planning (Custody) Be present at the Sheriffs Executive Productivity Committee meetings Review audits conducted by Audit and Accountability Bureau involving personnel matters Conduct audits of issues brought to our attention during monitoring activities Access and Review LASD’s Personnel Performance Index Fully monitor sustainability of CCJV reforms Fully monitor sustainability of other reforms initiated by the Sheriff or in response to litigation. Follow discipline cases from initiation through completion of civil service process. Review and analyze effectiveness of training conducted by the Department. Page 331 of 363 County of Los Angeles CHIEF EXECUTIVE OFFICE Kenneth Hahn Hall of Administration 500 West Temple Street,Room 713,Los Angeles, California 90012 (213)974-1101 http://ceo.lacounty.gov SACHI A.HAMAI Board of Supervisors Chief Executive Officer HILDA L.SOLIS First District MARK RIDLEY-THOMAS March 11,2016 Second District SHEILA KUEHL Third District DON KNABE Fourth District To:Supervisor Hilda L.Solis,Chair MICHAELDANTONOVICH Fifth DistrictSupervisorMarkRidley-Thomas Supervisor Sheila Kuehi Supervisor Don Knabe Supervisor Michael D.Antonovich From:Sachi A.H~~I~) Chief Executi~è1Officer REPORT BACK ON PROPOSED STAFFING AND FUNDING FOR THE CIVILIAN OVERSIGHT COMMISSION FOR THE SHERIFF DEPARTMENT (ITEM NO.P1,AGENDA OF JANUARY 12,2016) On January 12,2016,the Board directed the CEO to report back with recommendations on a proposed budget to staff and fund the Civilian Oversight Commission (Commission)and if the number of investigators assigned to the Office of the Inspector General (OIG)should be increased to handle additional workload. BACKGROUND On June 22,2015,the Working Group of the Commission for the Sheriffs Department (Sheriff)issued their final report with recommendations to the Board regarding the Commission’s mission, authority,size,structure and relationship to the Sheriff and 01G. In the final report,the Working Group discussed,in depth,the need for permanent staffing for the Commission to be an effective unit.The staff envisioned included an Executive Director,analysts,a Public Information Officer and administrative support. The Working Group also recommended an increase in staff for the OIG in order to handle the workload of the newly created Commission. COMMISSION STAFF As directed by the Board,the CEO has developed a draft organizational framework for the Commission, which includes staff identified by the Working Group as necessary for “To Enrich Lives Through Effective And Caring Service” Please Conserve Paper —This Document and Copies are Two-Sided Intra-County Correspondence Sent Electronically OnlyPage 332 of 363 Each Supervisor March 11,2016 Page 2 the Commission to be effective.The initial staffing plan includes an Executive Director, one Principal Staff Analyst;two Senior Staff Analysts;one Public Information Officer II; one Management Analyst;and one Management Secretary III position.Attachment A reflects the proposed budget and staffing plan for the Commission.Attachment B is the proposed organizational structure.All positions are preliminary pending final approval and allocation by CEO Classification and Administration.Once finalized,the necessary classification, compensation and funding for the Commission will be included as part of the annual budget process. A preliminary cost estimate of $1,254,000 is needed to address the operational needs of the Commission.The CEO recommends that a nationwide recruitment of the Executive Director begin as soon as possible.Upon appointment,the Executive Director,in conjunction with the CEO,will work together to determine if the proposed organizational structure and staffing plan meets their needs.If not,the CEO will return to the Board with a revised recommendation and operational cost estimate for your consideration. ESTIMATED COSTS FOR COMMISSION STAFF ON-GOING COSTS 8 Recommended Staff Salaries and Employee Benefits $1,006,000 On-going Services and Supplies ($6,000 X 8 Positions)$48,000 ONE-TIME START UP COSTS Vehicle (Executive Director)$35,000 Office Equipment and Furniture (Laptops,Computer, Monitors,Cubicles,Chairs,Phones, Photocopier/Scanner Printer,Network Printer etc.)$165,000 ESTIMATED TOTAL $1,254,000 COMMISSION OFFICE SPACE &IMPROVEMENTS CEO Asset Management staff is currently surveying the Los Angeles downtown area for suitable office space for the Commission’s staff.Based on the 8 recommended number of staff required for the Commission,CEO estimates that a total of 2,100 square feet of office space will be required. The annual lease for 2,100 square feet in the Downtown area is estimated at $62,000 with one-time cost for tenant and technology infrastructure improvements estimated at $216,000, totaling $278,000. ADDITIONAL STAFF FOR THE OIG The new Commission will certainly impact the OIG operationally.However,until the Commission is established and their needs are known,it is too early to determine the Page 333 of 363 Each Supervisor March 11,2016 Page 3 actual long-term impact the Commission will have on the 01G.If the Commission chooses to use readily available OIG reports, then additional staff resources may not be needed.Should the Commission seek an entirely different set of reports to support their work, then an increase in staff may be warranted.Once established,the OlG will assess the Commission’s impact on its resources and organizational structure and submit to the CEO, if necessary,a request for additional positions for consideration during the annual budget process. Separate from the Board motion,the OIG is requesting authorization to fill four positions frozen by the Board on August 5,2014.These positions were frozen until a detailed analysis of the OlG’s activities and accomplishments were provided to the Board. The OIG believes the four positions are necessary to handle increases in workload associated with access to confidential information which began in December 2015.All four positions are fully funded. The following is a summary of the requested positions and their respective duties and responsibilities: •Administrative Services Manager I -position will serve as a statistician and is needed to ensure the data disseminated by the OIG is relevant and interpreted properly. •2 Inspectors and 1 Deputy Inspector General -positions would bring the investigative and analysis staff to full strength (two inspectors and one lawyer). In addition,the OIG is requesting one additional unbudgeted Senior Board Specialist position. This position will serve as liaison between the Board, the Commission and the 01G.The estimated annual cost for this position is $86,000.The CEO is currently reviewing the aforementioned requests. Should you have any questions, please contact Sheila Williams, Public Safety,at (213)974-1155. SAH:SK:JJ SW:DC:cc Executive Office,Board of Supervisors County Counsel Sheriff Office of Inspector General Bi 00734 Civilian Oversight Commission.bm.031 11 6.docx Page 334 of 363 ATTACHMENTASalariesandEmployeeBenefitsCostoutFY201647No.ofNetTotalItemItemBudgetedAnnualVariableTOTALNameNo.ScheduleLevelPosSalarySB’s(S&EB’s)ExecutiveDirector,CivilianOversight Commission(UC)-R161.0166,000.0070,583.20236,583.19PrincipalStaffAnalyst, CommissionServices0961106H1.0105,000.0044)646.00149,646.00SeniorStaffAnalyst, CommissionServices0960100H2.0179,000.0076,110.80255,110.80PublicInformationOfficerII(b)160194E1.078,000.0033,165.60111,165.60ManagementAnalyst184890H1.068,000.0028,913.6096,913.60ManagementSecretaryIII210988C1.064,000.0027,212.8091,212.80IntermediateTypistClerk(b)22146681.037,0000028,962.4065,962.418.0697,000.00309,000.001,006,000.00Footnote:(a)AnnualsalaryisbasedonFY2016-17CEORECOMMENDEDBUDGETOracle-WeightedAnnualRate(ReportID:BP036A2 Date:11/12/15)(b) SalarybasedonScheduleAasofFebruary1,201B and3%COLAG:\SheriffOversight\CivilianOversight CommissionCostOatPage 335 of 363 CivilianOversightCommissionATTACHMENTBIExecutiveDirectorSENIORANALYSTANALYSTANALYSTPage 336 of 363 MEMORANDUM OF AGREEMENT TO SHARE AND PROTECT CONFIDENTIAL LASD INFORMATION This Memorandum of Agreement (MOA) is entered into by and between the Sheriff of Los Angeles County and the Inspector General of Los Angeles County in the spirit of cooperation in order to effectuate the goals of County Code Section 6.44.190 and provide the Inspector General with extensive access to information, documents and materials without the need for any formal legal process. PURPOSE The purpose of the MOA is to establish a working protocol for the Sheriffs Department (LASD) to convey information to the Inspector General (the Inspector General and his staff are herein referred to collectively as "OIG"), the Los Angeles County Board of Supervisors, and the anticipated, although yet to be formally created, Civilian Oversight Commission. SCOPE The parties understand and agree that the OIG, the Board of Supervisors, and the Civilian Oversight Commission shall be provided upon request non-confidential and/or non-privileged information and documentation. The remainder of this MOA shall address access to privileged and/or confidential information, including, but not necessarily limited to: personnel files, discipline information, complaints about LASD personnel, LASD investigations (criminal and administrative), information contained in the Department's Personnel Performance Index, force investigations, complaint inquiries, and non-public data and information. The term "information" as used herein means documents (whether in printed or electronic form), Sheriff's videos, databases, the contents of such documents or databases, and any conversations, discussions or meeting including or involving such materials. TIMELINE AND PROCESS All requests by the Civilian Oversight Commission, including its members and staff, for information and material shall be handled through, and made by, the OIG. The OIG will obtain access to documents or information by making a request to LASD. LASD shall respond to requests from the Inspector General in a timely manner and without unreasonable delay. Within ten (10) working days of a request, LASD will either (1) provide the requested information to OIG, (2) notify OIG that it will require more time to gather and produce the information, and provide an estimated time frame within which it will provide the information, or (3) notify OIG that it will not provide the requested information. PERSONNEL RECORDS The parties agree that the Inspector General will have reasonable access to Sheriff's personnel records upon request, including individually identifiable peace officer personnel records as defined by Penal Code § 832.8. In order to respect the right of privacy of LASD employees, OIG agrees to limit such requests to only those records and that portion of the record deemed necessary to the OIG's purpose. HOA.1283291.1 1 Page 337 of 363 ACCESS TO PERSONNEL PERFORMANCE INDEX DATABASE The Inspector General may obtain access to the Personnel Performance Index (PPI) system (or equivalent access on any successor system), including individually identifiable information, by making a request to the Captain of Risk Management Bureau or his/her designee. Direct access to the system will be provided only to OIG personnel specifically designated by the Inspector General and will be on a secured computer terminal maintained at the Sheriff's Department. To respect the right of privacy of LASD employees, OIG agrees to limit such requests to information that the Inspector General has determined is necessary for the OIG to accomplish its purpose, but shall include executive level access when deemed necessary by the Inspector General. Printed copies of PPI material may be obtained, consistent with the terms of this MOA, by making a request to the Captain of Risk Management Bureau or his/her designee. COMPLAINTS RECEIVED BY OFFICE OF INSPECTOR GENERAL In the event the OIG receives a complaint from the public regarding the conduct of Sheriff's personnel, and assuming the complainant agrees to the sharing of the complaint with LASD, the complaint will be turned over for investigation to the Sheriff's Department, and the OIG may monitor the investigation consistent with the terms of this MOA. OIG shall not provide any personnel or confidential information to the complainant. In those instances where the complainant does not give OIG permission to share the complaint with LASD, OIG will take reasonable steps to ensure the complaint is addressed to the extent legally possible. IN-PROGRESS INVESTIGATIONS The parties agree that the Inspector General can monitor in-progress investigations involving potential bias, deputy force, or misconduct by LASD personnel, including, but not limited to complaint inquiries, deputy-involved shootings, claims review and administrative investigations. The Inspector General can also monitor processes and investigations which implicate constitutional policing, best policing practices, risk avoidance and management and community confidence in Department policies, practices and tactics. The Inspector General will not monitor processes or investigations when not necessary to accomplish the OIG's purpose. The Inspector General will not interfere with the Sheriff's investigative authority or obstruct any investigation, and the Sheriff may limit the manner of such monitoring to protect an investigation, although, except in unusual circumstances, investigators, records, reports, video, or other evidence shall be made accessible in some form, unless the prosecutorial agency responsible for making a filing decision and prosecuting the case objects. Without specific authorization from the Sheriff, OIG personnel will not interview any of the involved parties or independently collect evidence while there is an active LASD criminal or administrative investigation. The incidental gathering of information for an unrelated purpose, such as taking a complaint from a complainant or general information gathered in the course of an audit or inquiry, shall be permitted if it is done in a manner that does not interfere with or obstruct the pending investigation. If, through the monitoring of an investigation, OIG personnel come into possession of any materials or information relevant to that investigation which the OIG has reason to believe is not already known to or in the possession of the LASD, such information/materials will be promptly provided to the appropriate LASD personnel. In the case of investigations that have already been submitted to a prosecuting agency, OIG will ensure that HOA.1283291.1 Page 338 of 363 the information/materials are provided to that prosecuting agency as well as to the LASD. PRESENCE AT MEETINGS, REVIEWS, DISCUSSIONS The parties agree that OIG personnel's presence at certain meetings, reviews, and other proceedings where discussions are had with the Sheriff's legal counsel regarding incidents, investigations, and/or disciplinary matters, is necessary in furtherance of the common purpose of improving LASD operations by identifying deficiencies in tactics, training and policies, working on solutions to those deficiencies, monitoring the implementation and effectiveness of corrective actions, and promoting public confidence in law enforcement by reporting on this process (although not the specific content) and the quality of such internal procedures. The parties specifically intend that the presence of OIG personnel will not waive the Department's attorney/client privilege in those instances. The Inspector General agrees to maintain and safeguard the confidentiality of all such discussions. The parties agree that OIG personnel, as part of their oversight function, will be permitted to be present at certain meetings, reviews and proceedings regarding LASD incidents, operations, investigations, disciplinary matters and corrective actions, but not at meetings, reviews and proceedings at which the subjects of the investigation are counseled or compelled to provide statements, nor at meetings in which the Sheriff determines such presence would interfere with or obstruct an ongoing investigation. The Sheriff at all times maintains the ability to obtain legal advice without monitoring by the OIG. Subject to the above restriction, in order to monitor the integrity of investigations, OIG personnel shall be given the greatest and earliest access to crime scenes that does not interfere with or obstruct an investigation or compromise evidence collection. This access shall be at the sole discretion of the handling detective and the assigned Sheriff's Department command staff. Subject to the above-described restrictions, the Inspector General, or his designees, shall be provided timely notice of and access to meetings and proceedings that occur on a regular basis, including but not limited to: • Periodic meetings regarding critical incidents, such as the Critical Incident Review Panel; • Periodic meetings and internal evaluations regarding uses of force, such as Executive Force Review and Custody Force Review; • Periodic internal evaluations of significant disciplinary matters, such as Case Review; • Periodic evaluations of unit operations, such as divisional Risk Management Forum or SCIF; and • Reviews of inmate deaths, such as Inmate Death Review. OIG personnel will be notified of, and are welcome to attend, the Sheriff's quarterly Management Conferences. INMATE MEDICAL RECORDS The parties agree that the OIG's access to individually identifiable inmate medical and/or mental health records will be in compliance with existing state and federal law. REVIEW OF CONFIDENTIAL MATERIALS HOA.1283291.1 3 Page 339 of 363 The Office of Inspector General shall be permitted to make or receive copies of confidential documents from the Sheriff's Department, with the exception of files maintained by the Personnel Administration Bureau or records of pending investigations. Files and records maintained by the Personnel Administration Bureau and records of pending investigations will be viewed by OIG personnel at Sheriff's Department premises except in unusual circumstances. No files, records or copies thereof shall be made or removed from Sheriff s Department premises without the express permission of the Sheriff's Department. Note-taking by OIG personnel shall not violate this provision. The Sheriff's Department will provide copies of investigations of deputy-involved shootings completed by the Homicide Bureau and investigations completed by the Internal Criminal Investigations Bureau at the same time that it refers those investigations to the Office of the District Attorney or other prosecuting agency unless the prosecutorial agency objects to providing copies of the investigation in a particular case. Notwithstanding the foregoing, the Sheriff retains the discretion, in unusual circumstances, to require that records be reviewed by OIG personnel on LASD premises. MAINTENANCE OF CONFIDENTIALITY The Office of Inspector General will safeguard and maintain the confidentiality of peace officer personnel records and all other privileged or confidential information, materials and records obtained by OIG personnel through the monitoring process or provided by the Sheriff to the OIG and will communicate such information outside of that office only in a manner as provided in this MOA and as currently set forth in subdivision G of County Code § 6.44.190. The Office of Inspector General will not disclose publicly, including in any open session of the Board of Supervisors or the Civilian Oversight Commission, the contents of peace officer personnel records, as defined by Penal Code § 832.8, or other privileged or confidential information maintained by the Sheriff's Department. The Inspector General agrees that should the Inspector General receive a formal request from the Board of Supervisors for personnel, investigative, or disciplinary information pursuant to subdivision G of § 6.44.190, the Inspector General will not turn over the requested information until the Sheriff has been advised of the request and the Sheriff has been given an opportunity to make a formal objection to the Board of Supervisors regarding the disclosure. The Inspector General shall at all times comply with the provisions currently set forth in County Code § 6.44.190. The Inspector General agrees that all requests for privileged or confidential information from the Board of Supervisors, the Civilian Oversight Commission, or any member thereof, shall be handled by the Inspector General, or in his or her absence, the Chief Deputy Inspector General, personally, and not by OIG staff members. With respect to privileged and/or confidential information that does not fall within the parameters of subdivision G of § 6.44.190, unless the Sheriff articulates a specific reason not to do so, the Inspector General may provide the Board of Supervisors, the Civilian Oversight Commission, or any individual member thereof, with (1) a brief description of the allegations of the incident (without including the names of any individual employees, and provided the disclosure will not interfere with or obstruct the investigation), (2) a HOA.1283291.1 4 Page 340 of 363 statement as to whether there is an investigation pending and the unit/entity responsible for conducting the investigation, (3) identification of what material the OIG reviewed, and (4) an update as to the status of the investigation. The specific contents of the material reviewed by the Inspector General will not be disclosed. The parties recognize that the Sheriff desires to be as transparent as possible, and may, within the parameters of all applicable laws, choose to allow additional information to be conveyed when the parties deem it appropriate. The Inspector General will at all times exercise discretion to ensure that information is provided in a manner which minimizes any risk to the privacy of any LASD employee, avoids interference with the independent operation of the Sheriffs Department, and maintains public safety. Such information shall be provided in a manner which will not result in public disclosure and the OIG will take steps to ensure that re-disclosure by the Civilian Oversight Commission and others does not occur. Such steps shall include the requirement that all OIG personnel and Civilian Oversight Commission members and personnel be provided a written advisement of their duty to maintain the confidentiality of all privileged and/or confidential information they access, and that those individuals also sign a nondisclosure agreement. PENALTIES FOR IMPROPER DISCLOSURE The parties intend that all disclosures contemplated by this MOA comply with all applicable laws. Any County officer, agent or employee who improperly discloses confidential and/or privileged information is subject to discipline, up to and including termination, and may further be subject to criminal and/or civil penalties where applicable. The parties agree to cooperate fully with any investigation of an alleged improper disclosure of confidential and/or privileged information. SHERIFF'S REVIEW OF OIG REPORTS The parties agree that the Inspector General shall make available for review by the Sheriff's Department any reports intended for public dissemination prior to their release, at such a time as affords the Sheriff's Department a reasonable opportunity to verify that no confidential or erroneous information is included within. WITHDRAWAL Either party can withdraw from this agreement upon written notice to the other party. Any information provided prior to such notice, and within 24 hours following such notice, remains subject to the terms of the agreement. TERMINATION This MOA will be terminated upon the withdrawal of either party as set forth above. NO WAIVER This MOA is not intended and shall not be construed to waive, or in any manner preclude by estoppel or prior agreement, the right of any party hereto to subsequently challenge: (1) any and HOA.1283291.1 5 Page 341 of 363 all of the terms of this MOA, and/or (2) the right of any person or entity to obtain or review deputy personnel file information that is deemed confidential by the California Government Code or Penal Code. NOTICES Formal notices under this agreement shall be made as follows: For the Sheriff: By email to: jmcdonne@lasd.org For the Inspector General: By email to: mhuntsman@oig.lacounty.gov The email shall specifically state that it is intended as formal notification pursuant to this MOA. MODIFICATION This agreement may be modified upon the mutual written consent of the parties: ■IIT►~ldi~~~Z~P►1~1~~ APPROVED AS TO FORM: MARY C. WICKHAM Intern County Counsel HOA.1283291.1 6 Page 342 of 363 County of Santa Clara Office of the County Counsel Board of Supervisors: Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian Page 1 of 3 County Executive: Jeffrey V. Smith 90541 DATE: April 3, 2018 TO: Board of Supervisors FROM: James R. Williams, County Counsel SUBJECT: Ordinance relating to Correction and Law Enforcement Monitoring RECOMMENDED ACTION Under advisement from January 23, 2018 (Item No. 22): Adoption of Ordinance No. NS- 300.923 adding Chapter V of Division A20 and Chapter XXV of Division A6 of the Santa Clara County Ordinance Code relating to correction and law enforcement monitoring. (County Counsel) • Action to Introduce and Preliminarily adopt on March 20, 2018; Roll Call Vote to waive reading, Roll Call Vote to adopt. • Action for Final Adoption on April 3, 2018; Roll Call Vote to adopt. FISCAL IMPLICATIONS There are no direct fiscal implications associated with the recommended action. However, the proposed ordinance contemplates that the Board of Supervisors (“Board”) will contract with an entity to perform the functions of the Office of Correction and Law Enforcement Monitoring. If the Board adopts the proposed ordinance, further analysis will be required to determine the costs of contracting for monitoring services. REASONS FOR RECOMMENDATION On January 23, 2018, the Board considered a proposal to establish an Office of Law Enforcement Monitoring (“Office”) to provide independent monitoring of jail and law enforcement operations, and a Community Correction and Law Enforcement Monitoring Committee to improve public transparency and accountability regarding jail and law enforcement operations. The proposal presented to the Board included a possible Charter amendment to provide for a Board-appointed Director of the Office and a proposed ordinance reflecting that appointment structure. The proposal also noted, however, that the Board could engage an independent contractor to perform the Office’s functions, in which case a Charter amendment would not be required. Following discussion at the January 23, 2018 meeting, the Board voted not to pursue a Charter amendment and instead to engage an independent contractor to perform the functions Page 343 of 363 Board of Supervisors: Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian Page 2 of 3 County Executive: Jeffrey V. Smith Agenda Date: April 3, 2018 of the Office. With that modification, the Board approved the proposal to establish an Office of Correction and Law Enforcement Monitoring. The Board also approved the proposal to establish a Community Correction and Law Enforcement Monitoring Committee, with the direction that its members should be appointed approximately 6-12 months after the independent contractor is engaged. The proposed ordinance amendments considered by the Board on January 23, 2018, are now before the Board for adoption, with conforming changes made by County Counsel to reflect the Board’s direction to engage an independent contractor to perform the functions of the Office and to appoint Committee members on the requested timeline. On January 23, 2018, the Board also voted to move forward with a Board Policy to provide additional policy direction relating to the Office. The proposed Board Policy requires more substantial modifications to accommodate the Board’s decision to engage an independent contractor to provide monitoring services. County Counsel intends to return to the Board with a revised proposed Board Policy on April 17, 2018. CHILD IMPACT The recommended action will have a positive impact on children and youth who interact with County jail and law enforcement operations or whose families or caretakers have such interactions. SENIOR IMPACT The recommended action will have a positive impact on seniors who interact with County jail and law enforcement operations or whose families or caretakers have such interactions. SUSTAINABILITY IMPLICATIONS The recommended action will have no/neutral sustainability implications. BACKGROUND Since the spring of 2016, the Finance and Government Operations Committee (“FGOC”) has held special meetings to consider the recommendations of the Blue Ribbon Commission on Improving Custody Operations. On September 7, 2016, and March 29, 2017, FGOC also held panel discussions among local and national experts on the subject of jail and law enforcement oversight. At the Board’s September 12, 2017 meeting, Supervisor Simitian brought forward a draft proposal to establish what was then called an Office of Correction and Law Enforcement Oversight. After discussing the proposal, the Board voted unanimously to refer it to FGOC for further consideration. FGOC considered the proposal at public meetings held on October 5, October 24, and December 14, 2017. In addition, the proposal was agendized for FGOC’s November 20, 2017 meeting, and although Supervisor Chavez was unable to attend and no action was taken, she offered her thoughts and recommendations in a public letter. Throughout this process, County Counsel incorporated FGOC’s recommendations into revised versions of the proposal. On December 14, 2017, FGOC considered the revised proposal, provided further feedback for incorporation by County Counsel, and voted to forward the proposal to the Page 344 of 363 Board of Supervisors: Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian Page 3 of 3 County Executive: Jeffrey V. Smith Agenda Date: April 3, 2018 Board with a favorable recommendation. On January 23, 2018, the Board considered a 4-part correction and law enforcement monitoring proposal: (1) a possible Charter amendment providing for a Board-appointed Director of the Office of Correction and Law Enforcement Monitoring; (2) an Ordinance Code amendment establishing an Office of Correction and Law Enforcement Monitoring; (3) a possible Ordinance Code amendment establishing a Community Correction and Law Enforcement Monitoring Committee; and (4) a Board Policy providing additional direction regarding the Office of Correction and Law Enforcement Monitoring. This item effectuates the Board’s direction with respect to the Ordinance Co de amendments. CONSEQUENCES OF NEGATIVE ACTION The proposed ordinance would not be adopted, and the Board would not establish an Office of Correction and Law Enforcement Monitoring or a Community Correction and Law Enforcement Monitoring Committee. STEPS FOLLOWING APPROVAL The Clerk of the Board shall process the update to the Ordinance Code. ATTACHMENTS:  Ordinance NS-300.923 relating to Correction and Law Enforcement Monitoring (PDF)  Item 16 public comment (PDF) HISTORY: 03/20/18 Board of Supervisors ADOPTED (PRELIM.) Next: 04/03/18 Page 345 of 363 Page 346 of 363 Page 347 of 363 Page 348 of 363 Page 349 of 363 Page 350 of 363 Page 351 of 363 Page 352 of 363 Page 353 of 363 Page 354 of 363 Page 355 of 363 Page 356 of 363 Contra Costa County Racial Justice Task Force Wednesday, September 5, 2018, 2:00 p.m. 651 Pine Street, Martinez Other County Oversight/Monitoring Bodies 1.Santa Clara County (April 2018) a.Office of Corrections and Law Enforcement Monitoring 2.Los Angeles County (August 2014) a.Office of Inspector General i.Civilian Oversight Commission 3.Sacramento County (October 2007) a.Inspector General i.The function of the Office of Inspector General is to conduct fact finding, audits, and other inquiries pertaining to administrative or operational matters of the Sacramento County Sheriff’s Department. ii.The Inspector General Office may also: 1.Conduct fact finding pertaining to select allegations of Sheriff employee behavior 2.Audit investigations and conduct systemic reviews of the disciplinary system 3.Provide complainants with timely updates on the status of investigations 4.Make recommendations for process changes to Board of Supervisors and public 4.San Diego County (1991) [11 members] a.Citizens' Law Enforcement Review Board i.To increase public confidence in government and the accountability of law enforcement by conducting impartial and independent investigations of citizen complaints of misconduct concerning Sheriff's Deputies and Probation Officers employed by the County of San Diego. Page 357 of 363 ii.Conducts an annual inspection of county adult detention facilities and files an annual report of such visitations together with pertinent recommendations with the Board of Supervisors 5.Sonoma County (9/15/15) a.Independent Office of Law Enforcement Review and Outreach i.To conduct independent reviews of investigations alleging law enforcement misconduct, including excessive use of force, and to engage the community in the review and possible recommendation of policy changes to the Sheriff’s Office and the Board of Supervisors. ii.For improved transparency and accountability to the community iii.Community Advisory Council [11 member body] 1.To act as a bridge between the many communities of Sonoma County and law enforcement, especially the Sheriff’s Office. 2.By holding public meetings and make recommendations on Sheriff’s Office policies, including, but not limited to, use of deadly force, community orientated policing, and other significant policies. 6.Other Resources a.Michele Deitch, Independent Correctional Oversight Mechanisms Across the United States: A 50-State Inventory, 30 Pace L. Rev. 1754 (2010) Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/21 Page 2 of 2Page 358 of 363 10/31/2018 1 Racial Justice Task Force Donté Blue, ORJ Deputy Director October 9, 2018 1.Terms to Know 2.Types of Oversight Bodies 3.Oversight Models 4.Reasons for oversight 2 Page 359 of 363 10/31/2018 2 1.IndependentOperates outside of law enforcement hierarchy, and funding is not dependent on decisions of law enforcement 2.OversightInvestigation and reporting on alleged wrongdoing or monitoring of detention conditions 3.AuditA performance management review process that rarely touches treatment of the incarcerated 4.AccessAbility to gain information from places, people, and records 5.AuthorityPower to make decisions and enforce rules (generally not part of independent monitoring ) 3 Michele Deitch, Independent Correctional Oversight Mechanisms Across the United States: A 50-State Inventory, 30 Pace L. Rev. 1754 (2010) 1.Governmental Agency or Commission 2.Ombudsperson 3.Inspector General 4.Legislative Committee with Inspection Responsibilities 5.Advocacy Group with Formal Right of Access 6.Citizens’ Board or Advisory Committee 7.General Government Auditing Body 8.Protection and Advocacy Organization  (mental illness and physical disabilities)  4 Michele Deitch, Independent Correctional Oversight Mechanisms Across the United States: A 50-State Inventory, 30 Pace L. Rev. 1754 (2010) Page 360 of 363 10/31/2018 3 Investigation Focused Characteristics 1.Independent investigations of complaints 2.May duplicate an internal affairs agency 3.Staffed by “non‐sworn” civilians  Strengths 1.May reduce bias of investigating complaints 2.Professional civilian investigators 3.Opportunity to increase community trust in investigations Concerns 1.Most expensive and complex model 2.May face resistance from law enforcement personnel 3.Challenge managing public expectations for change 5 Joseph De Angeles, et al., Civilian Oversight of Law Enforcement: A Review of the Strengths and Weaknesses of Various Models, National Association for Civilian Oversight of Law Enforcement (2016) Review Focused Characteristics 1.Often review quality of completed investigations 2.Make recommendations to law enforcement executives 3.Often a review board with citizen volunteers 4.Public meetings to collect community input Strengths 1.Allows community input into the process 2.May increase public trust 3.Usually least expensive model Concerns 1.Limited authority and under resourced 2.Volunteers have significantly less expertise 3.May be less independent than other models 6 Joseph De Angeles, et al., Civilian Oversight of Law Enforcement: A Review of the Strengths and Weaknesses of Various Models, National Association for Civilian Oversight of Law Enforcement (2016) Page 361 of 363 10/31/2018 4 Auditor/Monitor Focused Characteristics 1.Generally examines broad pattern in investigation processes 2.May do their own internal investigations 3.Often focused on change in policies, practices, and training Strengths 1.Usually have more robust reporting practices 2.Median cost level 3.May be more effective at promoting systemic change Concerns 1.Not usually focused on individual incidents 2.Significant expertise is required to be effective 3.Usually limited to making a series of recommendations 7 Joseph De Angeles, et al., Civilian Oversight of Law Enforcement: A Review of the Strengths and Weaknesses of Various Models, National Association for Civilian Oversight of Law Enforcement (2016) 8 Reasons for Independent Oversight: 1.Place to voice concerns outside of law enforcement 2.Help improve community relations by fostering better communication between law enforcement & community 3.Reduce public concern about high profile incidents. 4.Help increase public understanding of law enforcement policies and procedures. 5.When the oversight agency confirms a complainant’s allegation(s), complainants may feel validated. 6.And similarly, when the oversight agency exonerates the officer, the officer may feel vindicated. Page 362 of 363 10/31/2018 5 9 Reasons for Independent Oversight (continued): 7.Improved accountability and transparency in the discipline process. 8.Oversight agencies can improve department policies and procedures, and help identify areas of concern. 9.Assist in liability management to reduce chance of costly litigation by identifying issues and corrective measures early lawsuit is filed. 10.Public officials given opportunity to demonstrate their desire for increased accountability and elimination of misconduct. 11.Can help improve the quality of the department’s internal investigations of alleged misconduct. 12.Oversight can help hold the law enforcement departments accountable for officer’s actions. Discussion and Questions. Page 363 of 363