HB 4105 & 4334 (2017)

Michigan Immigrant Rights Center

Legislative Alert: HB 4105 & HB 4334 ("Sanctuary Policy Prohibition Act")

January 30, 2017

Primary Sponsor: Pamela Hornberger (32nd District)

Bill Status: 
- Introduced January 26, 2017
- Referred to Committee on Local Government January 26, 2017
- Committee on Local Government meeting held on June 7, 2017 (Find out more about the committee meeting here). 
- Referred to second reading on June 7, 2017
Bill Summary: The bill would ban enforcement of any local law or policy that limits local police communication with Immigration and Customs Enforcement (ICE) about any person's immigration status.  The bill would require every local government to provide written notice to every police officer about his or her duty to "cooperate with appropriate federal and state officials" about the "enforcement of federal and state immigration laws."  Local governments would have to provide written notice to the legislature that they have provided notice to officers. Police with "probable cause" to believe that someone under arrest is not legally present in the U.S. would be required to report that person to ICE.  Every year, every local government would have to report to the Michigan legislature how many reports they had made to ICE.  Any local government found not to be in compliance with any part of the law would lose their state revenue sharing funds.
Further information about the bill is now available on the Michigan Legislature website, and the text can be found here.
Background and Analysis: The bill is substantially similar to legislation introduced in 2009 (HB 4044) and 2015 (SB 445). It places tremendous burdens on local government to train their officers in immigration law and policy and expose themselves to litigation if they do not properly interpret the immigration law, including what might constitute "probable cause" for believing that a person lacks legal immigration status and/or engage in racial profiling.  The reporting requirements are also burdensome.
Only three communities in Michigan currently have limits in their local codes on communication with ICE, but many communities have local administrative policies put in place by local police leadership that this bill would seek to outlaw and punish.  
The threat to remove state funding from communities found not to be in compliance creates major incentives for communities to engage in racial profiling.  Immigrants commit crimes at a lower rate than the general population and many rural communities in Michigan have very few immigrants residing in or visiting them.  It's reasonable to assume that many Michigan municipalities might arrest no undocumented immigrants in a given year.   Fearing being targeted for loss of revenue, an unscrupulous official could feel pressure to target immigrants in the hope of having an arrest to report.  Studies of the federal "287(g)" program, whose expanded use was recently urged in an executive order signed by President Trump last week, revealed that local police involvement in the program resulted in widespread racial profiling. That order also sought to punish so-called "sanctuary" jurisdictions. However, serious questions remain about the constitutionality of that action.  
Further Information: At the last committee hearing, substitute versions of the bills were introduced.  They are meaningfully different from the prior versions.  The  new HB 4105  and  new 4334 introduce a "private attorney general" element that would allow any resident of a city or county to sue the city or county in state court if they believed that the city or county was enacting or enforcing a law, policy, or rule that limits or prohibits an officer or employee from communicating or cooperating with appropriate federal officials concerning the immigration status of an individual. HB 4334 applies to counties and HB 4105 applies to other local units of government.
The new bills would create powerful incentives for racial profiling and would subject cities and counties to costly litigation from anti-immigrant individuals and groups who do not perceive that their local units of government are engaging in sufficient "communicating and cooperating" with ICE.