Keep Washington Working Act FAQ for Law Enforcement

The Washington State Legislature passed the Keep Washington Working Act (KWW), Laws of 2019 ch. 440, E2SB 5497, after holding four public hearings on the bill during the 2019 Legislative Session. The bill passed the Legislature with bipartisan support.

KWW made numerous changes to state law for the stated purpose of “ensuring the state of Washington remains a place where the rights and dignity of all residents are maintained and protected in order to keep Washington working.” Among those changes, KWW restricts the extent to which local law enforcement agencies (LEAs) may participate in the enforcement of federal immigration laws. Because KWW is now in effect, LEAs have an immediate obligation to comply with KWW’s requirements.

KWW requires the Attorney General to publish model policies, guidance, and training recommendations based on these new limits by May 21, 2020. Consequently, the Attorney General’s Office (AGO) is engaging with law enforcement stakeholders and analyzing KWW. In so doing, the AGO is receiving requests and inquiries from local law enforcement regarding certain aspects of KWW. These Frequently Asked Questions (FAQs) are intended to answer some common inquiries and to help assist local LEAs with implementing KWW.

Consistent with the requirements set forth in the law, KWW requires all Washington law enforcement agencies to (1) adopt policies consistent with those published here, or (2) notify the AGO that they are not adopting the necessary changes, state the reasons why they are not doing so, and provide the AGO with a copy of the agency’s policies that ensure compliance with KWW. Please submit policies here.

You may view submitted policies pursuant to RCW 43.10.315 (2) and RCW 43.10.310 (2), here.

This document is not intended as legal advice. For more specific answers and clarification about how the provisions of KWW impact your agency, you are encouraged to consult the law itself and/or your respective legal counsel.

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KWW was enacted in multiple Chapters of the RCW, including the Washington Mutual Aid Peace Officers Powers Act (Chap. 10.93), as well as those governing the Attorney General’s Office (Chap. 43.10) and Administrative Departments and Agencies (Chap. 43.17). The full text can be found here. The new law is codified as follows:

• Section 1 (Findings): Not codified. See Code Reviser note following: RCW 43.17.425
• Section 2 (Definitions): RCW 43.17.420
• Section 3 (Keep Washington working statewide work group): RCW 43.330.510
• Section 4 (Immigration enforcement model policies—Adoption by schools, health facilities, courthouses): RCW 43.10.310
• Section 5 (Immigration and citizenship status—State agency restrictions): RCW 43.17.425
• Section 6 (Immigration and citizenship status—Law enforcement agency restrictions): RCW 10.93.160
• Section 7 (Immigration enforcement model policies—Adoption by law enforcement agencies): RCW 43.10.315
• Section 8 (Construction): Not codified. See Code Reviser note following: RCW 43.17.425
• Section 9 (Conflict with federal requirements): Not codified. See Code Reviser note following: RCW 43.17.425
• Section 10 (Repealing law): Not codified. Repealed RCW 10.70.140 (Aliens committed—Notice to immigration authority) and 1992 c 7 s 29 & 1925 ex.s. c 169 s 1; and (2) RCW 10.70.150 (Aliens committed—Copies of clerk's records) and 1925 ex.s. c 169 s 2.
• Section 11 (Funding): Not codified.
• Section 12 (Effective date): Not codified.

For ease of reference, these FAQs will refer to this new law as KWW. Readers are encouraged to click on the links above and examine the new law prior to reviewing the FAQs.

2: When did KWW become effective?

May 21, 2019.

3: What is the intent of KWW?

The Legislature stated in Section 1 that:

“The legislature finds that Washington state has a thriving economy that spans both east and west, and encompasses agriculture, food processing, timber, construction, health care, technology, and the hospitality industries.

The legislature also finds that Washington employers rely on a diverse workforce to ensure the economic vitality of the state. Nearly one million Washingtonians are immigrants, which is one out of every seven people in the state. Immigrants make up over sixteen percent of the workforce. In addition, fifteen percent of all business owners in the state were born outside the country, and these business owners have a large impact on the economy through innovation and the creation of jobs. Immigrants make a significant contribution to the economic vitality of this state, and it is essential that the state have policies that recognize their importance to Washington's economy.

In recognition of this significant contribution to the overall prosperity and strength of Washington state, the legislature, therefore, has a substantial and compelling interest in ensuring the state of Washington remains a place where the rights and dignity of all residents are maintained and protected in order to keep Washington working.”

4: What is a brief summary of KWW?

KWW is a law passed by the Washington State Legislature in 2019 that establishes “a statewide policy supporting Washington State’s economy and immigrants’ role in the workplace.”

In passing KWW, the Legislature determined that it is not state or local law enforcement’s primary purpose to enforce civil federal immigration law. Additionally, the Legislature determined that a person’s immigration status, presence in the country, or employment alone is not a matter for police action—reinforcing that the federal government bears the primary jurisdiction to enforce federal immigration law. Importantly, KWW places no restriction on local agencies’ ability to enforce state and local law.

5: When will the model guidance from the Attorney General’s Office be complete?

The model policies, guidance, and training recommendations are now available here.

6: Must local LEAs adopt the Attorney General’s model policies?

No. Local LEAs must either (1) adopt policies consistent with the Attorney General’s guidance, or (2) notify the Attorney General that they are not adopting the guidance and provide a copy of the agency’s own policies to ensure compliance with KWW.

7: Can local LEAs wait to comply with KWW until the Attorney General’s model guidance and policies are published?

No. KWW went into effect on May 21, 2019. KWW is currently the law.

8: Can local law enforcement agencies collect information regarding a person’s immigration or citizenship status?

No, with one exception. KWW prohibits local LEAs from asking for or collecting information about a person’s immigration or citizenship status, or place of birth—unless there is a connection between that information and an investigation into a violation of state or local criminal law. Unauthorized presence in the United States is governed by federal law and is not, by itself, a crime.

Arizona v. United States, 567 U.S. 387, 407, 132 S. Ct. 2492, 183 L. Ed. 2d 351 (2012).

9: What prohibitions does KWW place on a local law enforcement agency’s ability to share information with federal immigration authorities?

KWW prohibits local LEAs from providing any “nonpublicly available personal information” about any person (including those subject to community custody) to federal immigration authorities in a noncriminal matter—such as a civil immigration matter—except as otherwise required by state or federal law or a lawfully issued court order. Additionally, KWW repealed RCW 10.70.140, which required local law enforcement officials operating county jails to ask every person about their nationality, and notify federal immigration authorities about in certain circumstances.

Likewise, KWW prohibits local LEAs from providing federal immigration authorities with information regarding a person’s release date and time prior to their release from local custody based on “notification requests,” such as I-247 forms, for the purposes of civil immigration enforcement, except as required by law.

10: Does the information-sharing provision of KWW conflict with federal law?

No. KWW specifically requires local LEAs adhere to both state and federal law.

Under KWW, local LEAs must comply with federal law, including the provisions set forth in 8 U.S.C. § 1373. That statute prohibits state and local governments from placing restrictions on the ability of governmental agencies to share “information regarding citizenship or immigration status” with federal immigration authorities. As many federal courts have held, this federal law applies only to information regarding “citizenship or immigration status,” and does not prevent state and local government from implementing restrictions on sharing other types of information with federal immigration authorities, such as a person’s release date, hearing date, or home address. KWW defines “immigration or citizenship status” as a person’s established status under federal immigration law. While state and local government agencies, including local LEAs, may not prohibit officers from sharing this information, 8 U.S.C. § 1373 also does not require local officials to share citizenship or immigration status with federal immigration authorities. Thus, local LEAs do not violate federal law if they decline to share information beyond immigration and citizenship status to federal immigration authorities absent a judicial warrant or subpoena.

11: Can local law enforcement officers arrest a person solely for a civil immigration offense?

No. KWW prohibits law enforcement officials from detaining or taking someone into custody solely to determine their immigration status or based solely on a civil immigration warrant, detainer, or hold request. Being undocumented in the United States is not a crime under local, state, or federal law. Because there is no local or state statute criminalizing an individual’s undocumented status, nor any federal immigration law mandating immigration assistance from local LEAs, agencies are not required to enforce immigration law and KWW thereby limits local LEAs from doing so. Arresting or detaining someone without a warrant signed by a judge or probable cause is unconstitutional.

KWW also prohibits state and local law enforcement officers from participation in any contract, agreement, or arrangement that grants a state or local law enforcement officer federal civil immigration enforcement authority or powers.

12: What are LEAs’ obligations with respect to assisting with immigration enforcement?

KWW prohibits law enforcement officers from inquiring into or collecting information regarding a person’s immigration and citizenship status (with limited exception). However, KWW does not prevent an officer who otherwise knows a person’s immigration or citizenship status from sharing that information with federal immigration authorities (although sharing such information is not required). Additionally, pursuant to federal law, LEAs must honor warrants and subpoenas signed by federal judges and can do so without violating KWW.

No provision of federal law, however, requires state or local law enforcement officers to assist with federal immigration enforcement, including by honoring administrative warrants submitted by ICE. In fact, the U.S. Constitution limits the federal government’s ability to mandate particular action by states and localities, including in the area of federal immigration law enforcement and investigations. Under the anti-commandeering doctrine of the Tenth Amendment, the federal government cannot force states to enact or administer a federal regulatory program—such as immigration enforcement—or compel states or local employees to participate in the administration of a federally enacted regulatory scheme.

13: Should local law enforcement agencies honor immigration detainers, civil immigration warrants, or other hold requests?

No. An “immigration detainer” or “hold request” from federal immigration authorities such as ICE or CBP is a warrantless request for state or local LEAs to voluntarily hold a person in custody to give them the opportunity to take the person into federal custody. Such requests are not binding on local LEAs.

Under KWW local LEAs may only honor court orders and warrants signed by a federal Article III judge or magistrate or an Article IV state court judge. Immigration judges are not Article III judges.

Even before the Legislature passed KWW, numerous federal courts ruled that detaining a person without a warrant signed by a judge or an independent basis for the existence of probable cause of a crime violates the Fourth Amendment. Such detentions could subject officers and local LEAs to civil liability. Arizona v. United States, 567 U.S. 387, 449, 132 S. Ct. 2492, 183 L. Ed. 2d 351 (2012); Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1249-1250 (E.D. Wash. 2017); Mercado v. Dallas County, Texas, 229 F.Supp.3d 501, 511 (N.D. Texas 2017); Abriq v. Hall, 295 F. Supp. 3d 874, 880 (M.D. Tenn. 2018); Lopez–Aguilar v. Marion County Sheriff's Department, 296 F.Supp.3d 959, 969-70, 2017 WL 5634965, at * 11-13 (S.D. Ind. Nov. 7, 2017); Miranda-Olivares v. Clackamas Cty., 3:12-CV-02317-ST, 2014 WL 1414305, at *9-11 (D. Or. Apr. 11, 2014); Morales v. Chadbourne, 793 F.3d 208, 215-18 (1st Cir. 2015); Orellana v. Nobles Cty., 230 F. Supp. 3d 934, 944-46 (D. Minn. 2017).

KWW prohibits local LEAs from taking or holding anyone in custody based on these civil immigration enforcement tools.

14: Can local law enforcement agencies give federal immigration authorities access to people in custody or local jails?

Generally, no. Under KWW, local LEAs may not give federal immigration authorities access to interview an individual in custody about a noncriminal matter, such as a civil immigration matter, unless required by a state or federal law applicable to the case or by a court order. Local LEAs have the discretion to permit federal immigration authorities access to interview a person in custody, but only if the person in custody consents in writing prior to being interviewed. If a local LEA chooses to permit such access, KWW requires local law enforcement staff to provide the person with an oral explanation and a written consent form that explains the purpose of the interview. The form must also explain that the interview is voluntary and that the person may decline to be interviewed or be interviewed only with an attorney present. Further, the form must state that the person will not be punished or suffer retaliation for declining to be interviewed. The form must be available in at least English and Spanish and explained orally if the person is unable to read the form, using, when necessary, an interpreter from the district communications center “language line” or other district resources. Federal immigration authorities must not be used for interpretation or other language services.

15: Are local law enforcement agencies required to ask people about citizenship or immigration status to comply with consular notification requirements?

No. While the United States is a party to numerous treaties with foreign governments that include consular notification requirements, neither the Vienna Convention on Consular Relations nor any bilateral agreement with a foreign government requires law enforcement to inquire into the birthplace, immigration or citizenship status of a person in custody.

Consular notification obligations under these treaties are only triggered if a local LEA becomes aware that a person in their custody is a national of one of these countries. KWW prohibits inquiries into a person’s place of birth, immigration or citizenship status, with limited exception; and the U.S. Supreme Court has ruled that treaties do not supersede a detained person’s rights under the U.S. Constitution, including Fifth Amendment rights against self-incrimination. Local LEAs must therefore ensure that questions regarding a person’s place of birth, immigration status or citizenship are not asked of anyone in custody unless the information is related to the investigation of a state or local criminal matter.

KWW also requires that, upon the commitment or detainment of any person, local LEAs must explain, in writing (1) the person’s right to refuse to disclose their nationality, citizenship, or immigration status; and (2) that disclosure of such information may result in civil or criminal immigration enforcement, including removal from the United States. While KWW does not define a time period for this notification requirement, in most cases notification should be provided within 24-72 hours after the initial arrest.

16: Does KWW limit local law enforcement agency agreements with federal immigration authorities?

Yes. KWW prohibits state and local law enforcement officials from entering into contracts, agreements, or any arrangements granting them federal civil immigration enforcement authority, including agreements pursuant to 8 U.S.C. § 1357(g) (aka Section 287(g) agreements). KWW also prohibits local LEAs from entering into or renewing immigration detention agreements and requires existing agreements to terminate by November 17, 2019, with limited exception. Local LEAs are also prohibited from entering into or renewing contracts with federal immigration authorities for the provision of language services, nor may any language services be accepted from them—for free or otherwise.

Prescribed conditions of federal funding to the state may nullify certain provisions of KWW, but no such exception exists for federal funding to local jurisdictions. Therefore, local LEAs should review grant’s conditions for any conflicts with KWW and consult with their respective legal counsel for assistance with modifying or terminating any grants or contracts that conflict with KWW.

17: Does KWW impact school resource officers (SROs)?

Yes. Many of the same provisions that generally apply to all law enforcement officers apply to SROs. SROs may not inquire into or collect information about a person’s citizenship, immigration status, or place of birth, or provide information to federal immigration authorities in response to notification requests for the purposes of civil immigration enforcement, except as required by law. SROs are also prohibited from entering or renewing contracts with federal immigration authorities for the provision of language services, nor may any language services be accepted for free or otherwise.

18: Will KWW affect my agency’s access to federal grant funding?

Consult your legal counsel. Agencies should work with their local counsel to review existing grant funding, as well as future grants prior to applying, to determine if conditions related to the grant violate KWW’s prohibitions. If a grant’s conditions are not required by state or federal law and conflict with KWW, local LEAs may not be eligible for the grant. KWW does include some exceptions for “prescribed” or “necessary” conditions of federal funding, but only for the state.

KWW also prohibits local LEAs from entering into any contract, agreement, or arrangement that would grant an officer authority for federal civil immigration enforcement, including agreements pursuant to 8 U.S.C. § 1357(g) (aka Section 287(g) agreements). Additionally, KWW prohibits local LEAs from entering into, or renewing, immigration detention agreements and requires existing agreements to terminate by November 17, 2019, with limited exception.

19: Does KWW apply to the state Department of Corrections in the same way that it applies to local law enforcement agencies?

No. KWW contains some provisions that are unique to the Department of Corrections (“DOC”). For example, while LEAs cannot “deny services, benefits, privileges, or opportunities to individuals in custody, or under community custody pursuant to RCW 29 9.94A.701 and 9.94A.702, or in probation status, on the basis of the presence of an immigration detainer, hold, notification request, or civil immigration warrant,” KWW makes an exception for situations where such actions are “necessary for classification or placement purposes for individuals in the physical custody of the department of corrections.” Some sections of KWW regarding inquiring into, collecting, and sharing immigration or citizenship status, or place of birth, information also do not apply to individuals who are in the physical custody of the DOC. See RCW 10.93.160 (15).

However, KWW does give direction specific to the DOC that the agency “may not give federal immigration authorities access to interview individuals about federal immigration violations while they are in custody, except as required by state or federal law or by court order, unless such individuals consent to be interviewed in writing. Before agreeing to be interviewed, individuals must be advised that they will not be punished or suffer retaliation for declining to be interviewed.”

20: Does KWW impact state law enforcement agencies differently than LEAs?

Yes. As state agencies, state law enforcement agencies have additional requirements under KWW. State law enforcement agencies should contact the AGO if they have questions about compliance with KWW.

21: What if my agency fails to comply with the requirements of KWW?

KWW is the law of the state. Failure to comply with the law could result in civil liability for agencies, with the costs borne by the taxpayers. Intentional failure to comply could result in individual civil liability for state or local personnel. Under certain circumstances, intentionally violating KWW may also constitute a criminal violation under Washington law.

22: Who should I contact with questions or feedback?

The information provided in these FAQs are provided as a resource for general education purposes and are not provided for the purpose of giving legal advice of any kind. LEAs are encouraged to direct questions and discuss development of specific policies and procedures to best comply with KWW with their legal advisors. The AGO is available to provide assistance and additional legal resources regarding any of these issues. In addition, the AGO published Guidance Concerning Immigration Enforcement in 2017, which included discussion and best practices for LEAs which are based on the legal landscape existing at that time, but which are still relevant in many ways and may aid in KWW implementation. Part III: Local Law Enforcement Officers of the Guidance can be accessed directly at https://www.atg.wa.gov/immigrationguidance.

The AGO also welcomes your agency’s questions and feedback about how KWW might impact your work. The AGO will publish complete model policies and guidance as required by KWW in 2020 and invites your input as the policies and guidance are drafted.

 

Please note that this is not a formal opinion of the Attorney General. This information is provided as a resource for general education and is not provided for the purpose of giving legal advice.