California's Legislature is poised to become the first in the nation to pass an "anti-Arizona" law instructing police to release illegal immigrants if they haven't committed serious crimes -- instead of handing them over to the federal government.
The law could put a Democratic state at odds with a Democratic president whose administration has counted on local-federal law enforcement partnerships to find and deport illegal immigrants with criminal records.
"We aren't usurping anything. It's a states' rights issue," said Assemblyman Tom Ammiano, D-San Francisco, the sponsor of the bill that on Thursday passed the state Senate 21-13.
California's push to the left on immigration policy comes less than two weeks after the U.S. Supreme Court struck down parts of Arizona's strict immigration law but upheld a key provision requiring Arizona police officers to check the immigration status of the people they stop and reasonably suspect are in the country illegally.
Ammiano's measure is also a reaction to a federal immigration enforcement program, Secure Communities, forced upon all of California's counties two years ago.
The Assembly approved the bill last year but must vote on it again in August after the summer recess. But the big question is if the bill, AB1081, will be signed or vetoed by Gov. Jerry Brown, who hasn't taken a position on the legislation.
As attorney general, Brown signed the pact with the Obama administration
Ammiano's bill parallels an effort by the Santa Clara County Board of Supervisors, which has pushed back against the program.
Supervisors last year said the county would detain illegal immigrants only if the federal government paid for the cost to keep the inmates for an extra day or two to give U.S. Immigration and Customs Enforcement officials time to pick them up at the jail. ICE officials balked at the request, so now immigrants -- including those who have committed serious and violent felonies -- are released to the community once they finish their sentences.
Lori Pegg, acting Santa Clara County counsel, said Ammiano's proposed legislation "appears to be consistent" with the county's goal, which she said is "to make sure that we are not inappropriately detaining individuals solely on the basis of their immigration status."
Last year, the San Francisco Sheriff's Department said it would agree to detain illegal immigrants arrested for misdemeanors, but only if they have a prior felony or two misdemeanor convictions.
Virginia Kice, an ICE spokeswoman, said the agency wouldn't comment on California's pending legislation. But she defended the Secure Communities program, saying it has proved to be the most valuable tool in allowing the agency to focus on "criminal aliens" and those who repeatedly violate immigration law.
But critics of the program say it's netting far too many non-criminals.
Ammiano's "Trust Act" would prohibit police and sheriff's departments from holding immigrants if they are eligible for release from criminal custody unless they have been convicted of a serious or violent felony.
It also requires local agencies to "adopt a plan" to guard against racial profiling before complying with a federal immigration hold -- and also to guard against mistakenly detaining U.S. citizens.
Police chiefs in Oakland, Palo Alto and elsewhere have backed the bill, but sheriffs, who are responsible for county jails, have been less supportive. The Assembly website lists dozens of supporters -- including cities, school districts and numerous immigrant rights groups -- but just one opponent: the California State Sheriffs' Association.
The Senate vote this week fell on partisan lines -- Democrats for, Republicans against -- but one Democratic senator voted against the bill after speaking with sheriffs in his Central Valley district.
"Why would we ask a sheriff's deputy in any of the 58 counties to make a determination of what is a serious crime and what is not?" said state Sen. Michael Rubio, D-Shafter. "Sheriffs would be put in a difficult position."
Sheriffs also oppose the mandate requiring local agencies to guard against racial profiling and detaining U.S. citizens, said Curtis Hill, a former San Benito County sheriff and lobbyist for the sheriffs' association.
"That's problematic for us because profiling is so subjective," Hill said. "That sets up sheriffs and county general funds to get sued. We're going to get sued based on federal immigration policy."
The California bill is unlikely to conflict with federal law as Arizona's did because "even the federal government acknowledges these (immigration holds) are 'requests' ... so it's not as if they are refusing an order from the federal government," said Aarti Kohli, a senior fellow at UC Berkeley's Warren Institute on Law and Social Policy.
The bill flexes power that local and state governments already have, Kohli said.
Another immigration policy expert noted the California bill initially was a reaction to Secure Communities but "has been reshaped as an antidote" to Arizona's law.
"The Trust Act shows that different states want different policies in immigration enforcement," said Kevin Johnson, dean of the UC Davis School of Law. "It seems to me that we will have skirmishes like this until there is comprehensive national immigration reform."
Staff writers Josh Richman and Tracy Seipel contributed to this report.
Assembly Bill 1081, "The Trust Act," would require California law enforcement officers dealing with an illegal immigrant to keep no one on an immigration hold who is eligible for release from criminal custody, unless both of these conditions are satisfied:
It also would require any local government detaining a person on an immigration hold to adopt a plan guarding against: