Model Ordinance to Protect Against Discriminatory Profiling and Limit Surveillance, Intelligence Collection, and Immigration Enforcement Activities

(A .PDF copy of the current full proposed ordinance, including a suggested “whereas” preamble, is embedded at the end of this page.)

rental-ordinance-292x300[jump to: I. Definitions — II. Safeguards on Surveillance — III.  Limits on Undercover Infiltration Pertaining to Exercise of the Right to Political Expression or Religious Worship — IV. Prohibitions on Discriminatory Profiling; IV.C. Measures to Verify Potential Profiling of Protected Classes — V. Limits on Local Immigration Enforcement Activities — VI. Limits on Cooperation with Federal or Military Officials — VII. Transparency and Accountability Provisions — VIII. Civil Action and Injunctive Relief — IX. Severability — X. Distribution]

BE IT RESOLVED:

That all people, regardless of race, religion, gender, gender identity, national origin, sexual orientation, or immigration status are welcome in [the City of ], and that [the City of ] remains firmly committed to the protection of civil rights and civil liberties for all people, and enacts this ordinance to uphold our values by protecting those rights and liberties.


I. Definitions

A. “Observation” or “monitoring” means surveillance, monitoring, or data collection facilitated by human intelligence, undisclosed participation by law enforcement agents or informants, warrantless wiretaps, remote or live imaging, data recorded from cellular telephones, internet, and other telecommunications devices, or other routine or spontaneous investigative activities.

B. “Data Centers” means any facilities accepting public funds to facilitate the collection, dissemination, or analysis of intelligence data concerning non-criminal behavior collected through observation by federal, state, or local law enforcement agencies.

C. “Non-Criminal Intelligence Information” means information about activities that are not criminal in nature, collected outside the context of an investigation of a criminal act that has occurred.

D. “Local Law Enforcement Agencies” include [ ].

E. “ Investigatory Activity” means any stop, interrogation, search, seizure, use of force, or arrest.

F. “Frisk” includes a pat down.

G. “Protected class” refers to race, ethnicity, country or region of origin, religion, sexual orientation, gender, gender identity, immigration status, disability, HIV status, age, or housing status.


II. Safeguards on Surveillance

A. Information Collection: Law enforcement agents shall conduct searches of persons in this jurisdiction only on the basis of probable cause that a criminal offense has been committed, or on a basis previously held by a court to be consistent with rights under the Constitutions of the United States and State of [State].

  1. In accordance with federal law, reasonable suspicion that a criminal offense has been committed may justify a cursory frisk of outer clothing, or the collection or retention of intelligence information related to suspected criminal activity.
  2. Local law enforcement agencies shall not engage in efforts to collect or retain information about the lawful activities of persons or groups without reasonable suspicion that such activities relate to criminal activity.
  3. Observation or searches unsupported by individualized suspicion are per se reasonable and shall not provide a basis for arrest, prosecution, or the collection or retention of intelligence information.
  4. Local law enforcement agencies shall not pursue, engage in, or support either electronic or physical surveillance activities unless supported by a judicial warrant based on probable cause and specific to the time, place, and target of such surveillance.
  5. Intelligence collection activities unsupported by reasonable suspicion that a criminal offense has been or may be committed, or a judicial warrant, are per se unreasonable and prohibited.

B. Information Dissemination:

  1. Local law enforcement agencies shall not supply Intelligence Information to federal officials absent reasonable suspicion that a criminal offense has been or may be committed. Incident reports concerning allegedly suspicious activities shall not be reported to databases directly or indirectly accessible by federal officials absent reasonable suspicion that a criminal violation has been or may be committed.
  2. Intelligence Information shall not be disseminated to military or private sector organizations. Intelligence related to a criminal investigation that has been collected by local law enforcement agencies shall be disseminated only to law enforcement agencies; local authorities shall not include military or private sector actors, nor Data Centers (see I.B.) through which military or private sector actors could gain access directly or indirectly to such data.
  3. Local law enforcement agencies shall not participate in inter-agency bodies that disseminate non-criminal intelligence information unless those bodies comply with 28 C.F.R. Part 23 and its requirements regarding information receipt, maintenance, security, and dissemination.


III. Limits on Undercover Infiltration Pertaining to Exercise of the Right to Political Expression or Religious Worship

  1. Local law enforcement authorities shall not engage in undercover infiltration, or undisclosed participation of any kind, in groups or organizations pursuing First Amendment-protected (speech, political or religious) activity, absent probable cause that a criminal offense may be committed.
  2. Any investigation involving religious institutions or political organizations shall be pursued through the most minimally invasive methods available, and shall require active and recurring internal oversight.
  3. Local law enforcement agencies shall not select persons, organizations, associations, or institutions for any investigatory activity, to any extent, on the basis of their First Amendment-protected (speech, political, or religious) activities.
  4. Local law enforcement agencies shall not collect, disseminate, or maintain non-criminal Intelligence Information about the political, religious, or social views, associations, or activities of any person or any group, association, corporation, business, partnership, or other organization unless such information relates to criminal activity and there is reasonable suspicion to believe that the person may be involved.


IV. Prohibitions on Discriminatory Profiling

A. Local law enforcement agents and agencies shall not select persons for observation, interrogations, searches, frisks, or arrests based in any part on the person’s race, ethnicity, country or region of origin, religion, sexual orientation, gender, gender identity, immigration status, disability, HIV status, age, or housing status (except where trustworthy information relevant to the locality and timeframe links a person of a particular religion, sexual orientation, gender, gender identity, immigration status, disability, HIV status, age, or housing status to a specific criminal incident or scheme, and other factors support reasonable suspicion).

B. Local law enforcement agents and agencies shall not demand a person’s identification absent reasonable suspicion of criminal activity.

C. Measures to Verify Potential Profiling of Protected Classes: Following any observation, stop, frisk, search, interrogation, or arrest of any person, the agent initiating that activity shall record the following information about the person on a standardized Encounter Form:

  1. the date, time, and location of the investigatory activities;
  2. the particular investigatory tactics employed;
  3. the amount of time, if any, during which the subject(s) of the investigatory activities was detained;
  4. a description of any frisk or search, including the areas, vehicles, materials, or units of stored (physical or electronic) information searched;
  5. whether force was employed, and if so, for what reason, of what sort, and the effect of such force on the person(s);
  6. the nature of the suspicion prompting the investigatory activity, and the specific basis or bases for that suspicion;
  7. the approximate age of the person observed, searched, or interrogated, as perceived by the officer;
  8. the sex and gender of the person observed, searched, or interrogated, as perceived by the officer;
  9. the country or region of origin of the person observed, searched, or interrogated, as perceived by the officer;
  10. the religion of the person observed, searched, or interrogated, as perceived by the officer.
  11. the race or ethnicity of the person observed, searched, or interrogated, as perceived by the officer.
  12. whether the officer believed that the person observed, searched, or interrogated belonged to any other protective classed defined in [IV(C) or ultimate section of this legislation], such as sexual orientation, gender identity, immigration status, disability, or HIV status, age, or housing status, as well as their reason for this belief
  13. with what criminal violation, if any, any person observed, searched, or interrogated, was ultimately charged;

D. Privacy.

  1. The identification of characteristics described in sections [IV(C) or ultimate section] above (e.g., age, sex, gender, country or region of origin, religion, and race or ethnicity) shall be based on the observation and perception of the local law enforcement agent conducting the stop, search, or other investigatory activity. The person subjected to these investigatory activities shall not be asked to provide such information.
  2. Officers shall not seek to speculate about a person’s sexual orientation, gender identity, immigration status, HIV status, or housing status, nor shall they inquire about them. An officer shall only note a person’s membership in said protected classes if they had formed an opinion about the individual’s status in the protected class prior to the stop.
  3. Data collected pursuant to [IV(C) or ultimate section] shall (i) exclude personally identifiable information; (ii) be stored separately from databases accessible to operational law enforcement personnel from any agency; (iii) be maintained securely, protected by encryption or other security measures to protect against theft or unauthorized access, and; (iii) be audited and analyzed on an annual basis by an independent entity responsible for analysis.

E. Accountability. Encounter Forms shall be identifiable by sequential serial numbers. Those assigned to particular agents shall be tracked and recorded. Agents shall deliver copies of each Encounter Form to the local law enforcement agency, which shall periodically deliver them to an independent entity responsible for analysis.

F. Transparency.

  1. Persons subject to investigatory interactions such as stops, frisks, interrogations, searches or arrests shall receive copies of the Enforcement Form relating to their interaction. Encounter Forms shall include guidance on how to file a complaint about, or commendation of, the agent with whom they interacted.
  2. Persons subject to observation or monitoring shall not receive such documentation, but monitoring activities shall be documented through Encounter Forms, and subjected to an internal audit to ensure compliance.
  3. The information collected through Encounter Forms shall be aggregated and publicly disclosed every six months in a report to the [local legislative body] including statistics reflecting the rates at which persons of various races, religions, and national origins are represented at each investigatory stage.
  4. The report, as well as individual Encounter Forms, shall also be made available to litigants who allege discriminatory profiling (See Section [VIII or ultimate section]), or defendants seeking to exclude from prosecution evidence obtained through a potentially unconstitutional search.


Limits on Local Immigration Enforcement Activities

A. Local law enforcement agencies shall not participate in activities related to enforcing federal immigration laws.

  1. Local immigration enforcement. Local law enforcement agencies shall not engage in agreements with Department of Homeland Security (“DHS”) components, including Immigration and Customs Enforcement (“ICE”), to facilitate the enforcement of federal immigration law. Programs for which such engagement is prohibited include, but are not limited to: agreements under section 287(g) of the Immigration and Nationality Act; the Criminal Alien Program; and Next Generation Identification.
  2. Detainers. Facilities under the jurisdiction of this body shall not be used to detain persons held for suspected immigration violations. Law enforcement agents shall not make arrests or detain persons based on administrative warrants or requests by federal agencies for removal, including those generated by the federal Immigration and Customs Enforcement agency (ICE) or the National Crime Information Center (NCIC) database. Local officials shall not hold persons based on detainers requested by ICE.
  3. Sharing Arrest Data. Local law enforcement agencies shall not share arrest data (including but not limited to fingerprints) with state or federal counterparts, including the Federal Bureau of Investigations (FBI), unless it relates to suspected violent felonies. Data pertaining to persons suspected of misdemeanors or nonviolent felonies shall not be shared with other law enforcement agencies absent an express duty under federal or state law.

B. Privacy.

  1. Local law enforcement agencies shall not monitor, stop, detain, question, interrogate, or search a person solely for the purpose of determining that person’s immigration status. The use of an otherwise valid criminal investigation or arrest as a pretext to ascertain information about a person’s immigration status is prohibited.
  2. Local law enforcement agencies shall not inquire about the immigration status of any crime victim or witness, or suspects of alleged misdemeanors, nor shall they refer such information to federal immigration enforcement authorities.
  3. Local law enforcement agencies shall not initiate a criminal investigation based solely on information or suspicion that a person has committed a civil violation by residing in the United States without proper authorization.
  4. Local law enforcement agencies shall tow a vehicle of an unlicensed driver only after granting an opportunity to allow the unlicensed driver to secure his or her vehicle on the scene, or to contact another source to recover the vehicle.


VI. Limits on Cooperation with Federal or Military Officials

A. Activities undertaken by local law enforcement agencies in coordination with federal counterparts, including joint intelligence analysis activities involving Data Centers or federal intelligence agencies, shall be strictly limited to:

  1. Criminal law enforcement, or
  2. Disaster preparedness and recovery activities.

B. Local law enforcement agencies shall coordinate their activities with military or National Guard personnel only to the extent their activities relate specifically to disaster preparedness and recovery.

C. Disaster Response. Under no circumstances will due process be suspended: even in the event that a natural disaster precludes the normal operation of courts, local agencies; deputized private contractors shall not be authorized to impose summary penalties without judicial process (as, for example, occurred in New Orleans in 2005).


VII. Civil Action and Injunctive Relief

A. Any person subjected to law enforcement activity exceeding the limits imposed by this Ordinance may file in a court of competent jurisdiction a civil action for declaratory or injunctive relief against either

  1. the local law enforcement agency employing the individual agent whose conduct constituted a violation,
  2. the individual agent(s) responsible for the injury, or both.
    1. Litigants shall be allowed access to aggregate data collected under [Section III(A) or ultimate section].
    2. A disparate impact on a protected class shall constitute a violation of this Ordinance.
  3. Attorney’s fees
    1.  A litigant who successfully brings a civil action for declaratory or injunctive relief under this act shall be awarded attorney’s fees.


VIII. Severability

A. The provisions of this Ordinance shall be severable. If any phrase, clause, sentence, or provision of this Ordinance is declared by a court of competent jurisdiction to violate the Constitution of the United States or the Constitution of the State of [State], or if its applicability to any agency, person or circumstance is held invalid, the validity of the remainder of the Ordinance and its applicability to any other agency, person, or circumstances shall not be affected.


IX. Distribution

A. Local law enforcement agencies shall train all officers on the implications of this Ordinance for their respective responsibilities. Agencies shall also conduct written and behavioral assessment to ensure that this measure is understood and followed by officers.

B. The [city executive official] shall send copies of this ordinance to our US Congressional and Senate representatives, the US Attorney General, and the President of the United States.

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